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A HISTORY OF PENAL METHODS 



BOOKS ON CRIMINOLOGY 



TORQUEMADA AND THE 
SPANISH INQUISITION 

By Rafael Sabatini, author of *' The Life 
of Cesare Borgia," etc., etc. Demy 8vo, cloth 
gilt, with a photogravure frontispiece and i6 
other illustrations. i6s. net. 

" There is no question that he has made a close study of the 
best authorities on his subject, that he presents the facts with 
a due regard to their historical background, and tbat he suc- 
ceeds in leaving on the reader's mind a clear impression of the 
mechanism of the Spanish Inquisition, and of the strangely 
mingled qualities of die man who perfected and controlled the 
most extraordinary engine of religious persecution that the 
world has ever seen." — Glasgow Herald. 

LONDON : STANLEYPAUL&C0.,31 Essex St. Strand, W.C. 

UNFINISHED MAN 

A Scientific Analysis of the Psychopath 

or Human Degenerate 

By Dr. Albert Wilson. Demy Svo, cloth 
gilt. Fully illustrated. With a Preface by 
Arnold White, ids. 6d. net. 

" Of high importance for students of sociology is this inter- 
esting book of Dr. Wilson's. It places the whole question of 
the treatment of the feeble-minded and criminal classes on a 
scientific basis. It is clearly written and profusely illustrated, 
and its main arguments may be as easily followed by the 
ordinary reader as by the sociological expert. A remarkable 
book. " — Scotsman. 

EDUCATION, PERSONALITY, AND CRIME 

By Dr. Albert Wilson. Demy Svo, cloth 
gilt. 7s. 6d. net. 

Dr. Albert Wilson, who received much assistance in his re- 
searches from the late General Booth, believes the criminal, as 
a rule, misunderstood and down-trodden, and holds that in- 
herited dispositions^ are increased by under-nourishment and 
evil conditions of life, while the present punitive system turns 
criminals into lifelong outlaws. 

LONDON : GREENING & CO., Esses Street, Strand, W.C. 



A HISTORY OF PENAL 
METHODS 

CRIMINALS, WITCHES, LUNATICS 



BY 

GEORGE IVES, M.A. 



LONDON 

STANLEY PAUL & CO 

31 ESSEX STREET, STRAND, W.C. 



r?5 



First published in igJ4 



PREFACE 

Criminology is the study of the causes and treatment 
of crime. To track the offender is a problem for the 
police ; to determine his guilt or innocence is the work 
of the courts. Graphic accounts of his crime and capture, 
descriptions of his trial and conviction, or reports of 
the last scene when he stood upon the scaffold, are not 
criminology. The dreary records of convict mismanage- 
ment by the Governor of Gaolblank, and the ghastly- 
cheerful reminiscences of the Chaplain of Chokee — even 
the fascinating studies of, say, Edgar Poe, and Conan 
Doyle, in the art of Deduction — are not criminology. 
We know now, and are beginning to realize, that nothing 
ever happens without a cause. A man can no more 
exist underived from the Past or effectless upon the 
Future, than he can walk suspended in the air. 

Therefore, when we look upon a person who is branded 
as a criminal, we have to account for him. He may be 
degraded enough as we find him, he may be a drunken, 
homeless wanderer or street-corner man, but what made 
him like this ? 

He started some few years back as a helpless baby, 
with a little bright, wondering face looking out on life. 
What has been impressed into it since then ? It was a 
blank page, with only the water-mark of heredity, and a 
certain grade of quality and texture upon it. What have 
we written there ? what has the whole community been 
doing to make these lines, now so deeply graven, or 
whence came they ? How is this stain on him, and there- 
fore on all of us, to be cleared away ? What must be done 
to help with a strong hand : that will be criminology. 

I have sought to show how every act of aggression 
which might occur, was met by an instinctive counter- 



vi PREFACE 

act of retaliation, spontaneously undertaken by the 
injured party or group, unless appeased by adequate 
compensation. How later, revenge was left entirely to 
the State, the notion of restitution being lost sight of ; 
and how, ultimately, the original cause and mainspnng of 
punishment — which was clearly, vengeance — became dis- 
guised in official forms ; its alleged purposes being then 
variously explained and justified by all sorts of theories, 
which were often conflicting and contradictory. 

So that professional legislators and unthinking demo- 
cracies altogether lost sight of penal law origins (if we go 
so far as to assume that they ever had realized them), 
and looked upon punishments as remedial measures, 
whereas they are really only survivals, concessions allowed 
to unreasoning cruelty. 

So used are we to witnessing new laws made and fresh 
crimes created, as well as the constant punishing of all 
sorts of citizens — a punishment being always the cheapest 
and easiest substitute for a positive remedy — that it is 
scarcely remarkable that men generally acquiesce. 

I have therefore tried to analyse the theories and 
assumptions on which the criminal laws are founded, and 
to exhibit their falsity ; and have collected a number 
of instances of archaic punishments which were mani- 
festly instinctive ; the inference being that all others 
are similarly derived from evil (because pain-producing) 
desires. 

While the question of the origin of punishment is a 
matter of profound historical and didactic interest, that 
of the causes which create criminals is of the utmost 
importance to the whole commonwealth. The very idea 
of the necessity for causation only arose with the spirit 
of scientific inquiry. In the olden days of theological 
Dualism all crimes were attributed to diabolical instiga- 
tion ; a belief which was expressly stated on the legal 
indictments. But now we are beginning to seek out the 
actual sources of social troubles, and to discover them 
in circumstances rather than sins, and to find them to 
be by no means evils inevitable, due to human depravity, 
but much more to bad conditions which have been 
tolerated, if not maintained, through selfishness and 
neglect. 



PREFACE vii 

In tha belief that such words as Chance and Accident 
are merely expressions which reveal our ignorance of 
catenary impulses ; and that the far-thrown pebble 
glancing over the swell, and skimming from wave to wave 
until it sinks into the ocean, must take a certain and 
undeviating course occasioned by the forces and resist- 
ances acting on it ; I have tried to examine and analyse 
the forces which play on people, the usual resistance to 
them, and the resultant conduct ; which may generally 
be predicted. I have attempted to show how offenders 
ought to be classified on rational principles in order that 
each may receive the treatment proper to his condition. 
It is, as most of the modem school are perceiving now 
(witness the works of Devon, Hopkins, de Quiros, Saleilles, 
etc.), the scientific sorting out of Society's Failures, and 
their individual treatment according to their various and 
widely differing needs, that will prove to be the greatest 
measure yet undertaken, to ensure the ultimate but 
certain elimination of crime. 

The reader will perceive that many of the following 
chapters could have been lengthened enormously and 
there would still have remained much unused material. 
The literature on every subject is now so vast that one is 
conscious and fearful of having left out a number of 
works of reference which would have been valuable ; but 
the book has already taken so many years, that I have 
decided that it must stand as it is, and only be amplified 
at some future time, should this ever be feasible. 

With a long experience of great catalogues, I have 
made it a rule to give each author's initials when quoting 
authorities, and, generally, the dates of their works. 
Also, I have usually indicated whence I have obtained 
historical facts, even in cases where they might have been 
assumed to be matters of common knowledge, in order 
that they may be easily verified or further explored ; 
for it has always been my hope and ambition to set other 
students at the task of investigating complex, neglected, 
or tabooed problems, so that light may be thrown on 
them. 



CONTENTS 

CHAPTER I 

PENAL METHODS OF THE MIDDLE AGES 

CHAPTER II 

THE WITCH TRIALS . . . , 

CHAPTER III 

TREATMENT OF THE INSANE 

CHAPTER IV 

BANISHMENT .... 



PAOE 

I 



58 



n 



97 



CHAPTER V 

THE ORIGIN OF THE CELL PRISONS . . . 171 

CHAPTER VI 

PENITENTIARY EXPERIMENTS .... 176 



PAQS 



X CONTENTS 

CHAPTER VII 

THE " MODEL " SYSTEM 

CHAPTER VIII 
" model" labour 



CHAPTER IX 

THE BREAK-UP OF THE MODEL .... I95 

CHAPTER X 

PENAL SERVITUDE : THE PANIC COMMISSION . . 201 

CHAPTER XI 

THE MILITARY DESPOTISM ..... 207 

CHAPTER XII 

THE SILENT SYSTEM ...... 212 

CHAPTER XIII 

THE VISITATION OF THE SICK . . . . 2l8 

CHAPTER XIV 

MONOTONY ...... 224 



CONTENTS xi 

CHAPTER XV 

!« VAOE 

18; THE CONVENTIONAL VIEW 236 

CHAPTER XVI 

li: THE INSTINCT OF RETALIATION — PUNISHMENT OF 

THINGS, ANIMALS, AND CORPSES . . . 247 

CHAPTER XVII 

CLASSIFICATION OF CRIMES ... . 267 

CHAPTER XVIII 

CLASSIFICATION : OFFENDERS .... 305 

CHAPTER XIX 

THE DIRECTION OF REFORM .... 321 

CHAPTER XX 

PRACTICAL PRISONS 37° 

INDEX TO AUTHORS 3^4 

SUBJECT INDEX 397 



.'-■■I 



A HISTORY OF PENAL 
METHODS 

CHAPTER I 

PENAL METHODS OF THE MIDDLE AGES 

Prisons as places of detention are very ancient institu- 
tions. As soon as men had learned the way to build, 
in stone, as in Egypt, or with bricks, as in Mesopotamia, 
when kings had many-towered fortresses, and the great 
barons castles on the crags, there would be cells and 
dungeons in the citadels.' But prisons as places for 
the reception of " ordinary" (as distinct from state or 
political) criminals for definite terms only evolved in 
England many centuries afterwards ' ; whilst imprison- 
ment as a punishment in itself,' to be endured under rules 
made expressly punitive and distressful, may be described, 
as essentially modern, and reached its worst phase in the 
nineteenth century.* 

' " In the early cuneiform writing . . . the symbol for a prison is 
a combination of the symbols for ' house ' and ' darkness ' " — Isaac 
Taylor, History of the Alphabet, p. 21. London, 1899. 

3 It has been said that imprisonment is not mentioned in Anglo- 
Saxon laws as a punishment ; it is, however, referred to in the laws 
of iEthelstan thus : " For murder let a man forfeit his life, if he will 
deny it and appear guilty at the threefold ordeal let him be 120 nights 
in prison ; afterwards let his relations take him out and pay the king 
120 shillings and to his relatives the price of his blood. . . ." See J. 
Johnson, Ecclesiastical Laws. London, 1720. The same king ordained 
that " If a thief be brought into prison that he be 40 days in prison 
and then let him be released thereout with cxx. shillings and let his 
kindred enter into borh for him that he will ever more desist." — B. 
Thorpe, Ancient Laws and Institutions of England, fol. ed. p. 85. 
London, 1840. 

» " In the reign of Henry III. imprisonment for a definite period 
was an unknown punishment." — G. J. Turner, Select Pleas of the Forest, 
p. Ixv. London, 1901. 

• " Imprisonment occurs in the Anglo-Saxon Laws only as a means 
of temporary security." — Pollock and Maitland, Hist. Eng, Law, 
vol. i. p. 26. Cambridge, 1895. 



2 A HISTORY OF PENAL METHODS 

The Teutonic Tribes of the bays and forests were 
fierce and free. They exempUfied, in fact, the theory oi 
Nietzsche, that hberty cannot be granted but must be 
taken. ^ They had not cowered before Oriental super- 
stitions,^ and as they Uved in widely scattered hordes a 
central government could not impose its yoke upon the 
savage warriors. With the wild clansmen of the fierce 
Norse nations, where every man was always ready armed ' 
and boys received their weapons at fifteen,* the great 
desideratum was the maintenance of peace. 

The instinct of retaliation throbs in all men, and venge- 
ance swift and bloody would be sought for, which, where 
the kindred ties were close and strong, might spread a 
feud through villages and clans, such that the very 
children might be born devoted to the duty of a family 
revenge. The Teutonic nations, like the free peoples 
they were, always assumed that for a crime to have been 
committed, an individual must have suffered injiiry.' 
And they conceived the aggrieved plaintiff as no cowed 
weakling (or he would not have counted), but as a fighting 
freeman with spear and shield, who would repay a wrong 
with interest, and whom, if slain, his kinsmen would 
avenge. 

Thus the placation ° of the injured party was the 
objective of the oldest laws. Allowance was made for 



1 " In the nature of the Saxons in the most ancient times there 
existed neither a knowledge of the most high and heavenly King . . . 
nor any dignity of honour of any earthly king. . . ." — W. Stubbs, 
Const. Hist. p. 49. Oxford, 1880. 

" Ibid. p. 75. 

3 " Nihil neque pubUcae neque privatae rei nisi armati agunt." 
— Tac. Germ. xiii. 

* Among the Jutes, etc., see J. M. Lappenberg, Hist, of Eng. under 
the Anglo-Saxon Kings, i. p. gj, London, 1845 The Anglo-Saxon 
lad came of age at twelve ; see work just quoted, p ^73, and J. Thrupp, 
The Anglo-Saxon Home, p. 108. London, 1862. 

<> The exceptions to this wise though primitive rule are to be found 
where occasionally " God " and even " Nature " would be cited as 
injured third parties, upon theological grounds. See, for instance, 
N. Marshall, Penitential Discipline of the Primitive Church, pp. 49, 190, 
Oxford, 1844 ; and the thirteenth-century Mirror of Justice, chap. xiv. 

» " To keep the peace is the legislator' 1 first object, and it is not 
easy. To force the injured man or the slain man's kinsfolk to accept 
a money compensation instead of resorting to reprisals is the main 
aim of the law-giver."— F. W. Maitland, Constitutional History af 
England, p. 4. Cambridge, 1908. 



PENAL METHODS OF MIDDLE AGES 3 

htiman feelings ' and impulses. Some ancient codes ' 
permitted him like for like : an eye for an eye, and a 
tooth for a tooth, in the sense of so much, and no 
more.' But the Teutonic laws offered him compensa- 
tion,* and, when it is possible, compelled him to ac- 
cept it.' Thus crimes were met by restitution, not by 
punishment.' 

Every sort of injury which one freeman could do to 
another was first of all atonable by bot (a money com- 
pensation paid to the injured man or his relations).' 
What this fine was depended firstly upon the nature and 
extent of the damage done, and secondly upon the rank 
and importance of the person injured.' For every man 
had his class and value ; and e^•e^y form of aggression 
against a freeman, from a wound which killed him out- 
right to a blow which deprived him of a single tooth," 

1 Thus in the La^vs of the XII. Tables the manifest thief would 
be killed if a slave, or if free become the bondman of the person robbed ; 
if, ho\vever, he were captured later, he had to refund double the value 
of what he had taken. By the Germanic codes n thief might be in- 
stantly chased and then hanged or decapitated, but fines for homicide 
would be imposed if he were slain after an interval. Henry Maine, 
AiKient Law, ed. of 1906. pp. 387, 388. 

» For instance. Exodus xxi. 23, 24, 25. 

' See E. Westermarck, Moral Ideas, vol. i. p. 178. London, 1906. 

* At first it was not always necessary to accept tlie blood-fine. See 
E. W. Robertson, Scotland under her Early Kings, p. ;:87, Edinburgh, 
1862, on this point ; and as to the treatment of female relatives, see 
J. Thrupp, Anglo-Saxon Home, p. 151. 

' In the seventh century a law of Ine ordained that " If any one 
takes refuge before he demands justice, let him give up what he has 
taken to himself and pay the damage done and make bot with xxx. 
shillings." — ^Thorpe, Ancient Laws and Institutions, fol. ed. p. 48. 

• " The penal law of ancient communities is not a law of crimes ; 
it is a law of wrongs, or, to use the English technical word, of torts. 
The person injured proceeds against the wrongdoer by an ordinary 
civil action, and recovers compensation in the shape of money damages 
if he succeeds." — Maine, Ancient Law, p. 379. 

» " It is curious to observe how little the men of primitive times 
were troubled with these scruples (as to the degree of moral guilt to 
be ascribed to the wrongdoer), how completely they were persuaded 
that the impulses of the wronged person were the proper measure of the 
vengeance he was entitled to exact, and how literally they imitated 
the rise and fall of his passions in fixing their scale of punishment."— 
ilaiae. Ancient Law, p. 3S9. ^^ j. , ^ 

« " Every man's life had its value, and accordmg to that valuation 
the value of his oath in a court of justice varied, and offences against 
his person and protection were atoned for."— Stubbs, Const. Htst. 1. 

p. t88. ■ .,, j, ^ ■ vi 

» .\ front tooth usually cost six shillings ; in Alfred s tmie, eight. 



4 A HISTORY OF PENAL METHODS 

as weU as the theft of anything he possessed, had its 
appointed fine according to his wer.^ 

The tariffs varied with the different tribes,' but the 
main principle— of compensation— extends through all. 
In Mercia the wer-gild of a king was fixed at 7200 shiUmgs 
or 120 Mercian pounds of silver,^ to which great sum was 
added the cynebot of a similar amount which was payable 
to his people.* The wer-gild of a thane {i.e. county 
magnate) came to 1200 shillings, that of a ceorl (husband- 
man) was 200 shillings.^ 

These murder-fines, however, were much heavier than 
they look ; ° those of the kings,' numerous as they were, 
would in most cases have been hopelessly unpayable by 
private people, and those of the thanes by humble families. 
Even the wer-gild of the ceorl, or labourer, which was 
200 scillings, or about four pounds, was not inconsiderable 
when we remember that in ^thelstan's time one scilling 
would buy a sheep, and six scillings (or thirty pence) ' 
an ox^ — the cost would be the price of a small herd.' 

So that frequently the man-fines '" were never paid, 
and then we perceive that the wise compensation system 
of the codes arose more out of the fear of the vendetta 
than from humane principles ; " if they were not paid, 
vengeance would be let loose. 

1 Laws of ^thelbert. If a, freeman rob the king let him pay a 
forfeiture ninefold. If a freeman rob a freeman let him make three- 
fold satisfaction. — J. Johnson, Ecc. Laws. 

2 For a collection of the various codes and for examples of their 
amazing minuteness as to all possible injuries, see F. Lindenbrog, 
Codex legum antiquarum, pp. 474, 498, etc. Frankfort, 161 3. 

3 The Mercian pound was equal to 60 sciUings, the Wessex to 48 ; 
see H. A. Grueber, Handbook of the Coins, p. ix. London, 1899. 

* Stubbs, Const. Hist. i. p. 109. 

5 Thorpe, fol. ed. p. 80. 

^ W. S. Holdsworth, History of English Law, p. 13. London, 1903. 

^ J. M. Kemble, The Saxons in England, i. p. 149. London, 1876. 

•R. Ruding, Annals of the Coinage, p. no. London, 1840. 

^ F. W. Maitland, Donfesday Book, p. 44. Cambridge, 1879. 

10 "It was at least theoretically possible down to the middle of the 
tenth century for a man-slayer to elect to bear the feud of the kindred. 
His own kindred, however, might avoid any share in the feud by dis- 
claiming him ; any of them who maintained him after this, as well 
as any of the avenging kinsfolk who meddled with any but the actual 
wrongdoer, was deemed a foe to the king." — Pollock and Maitland 
Hist. ed. of 1898, i. 48. 

" VWien a ceorl had been frequently accused, if afterwards he 
were apprehended he might lose a hand or a foot. — Laws of Ine. 
R. Schmidt, Gesetze, p. 29. Leipzig, 1858. 



PENAL METHODS OF MIDDLE AGES 5 

If the offender were not slain or abused/ if he did not 
escape and live as an outlaw and a " wolf's head" ^ 
(which was frequently done,' for there were some ten 
men outlawed * to every one hanged »), he might be sold « 
as a wite theow ' into penal slavery. ' For there were 
slaves as a class in Christendom and in England up to 
the twelfth century,' and they being helpless, like our 
" submerged " masses, were of little account at all in the 
community. 

Derived mainly from the conquered taken in wars and 
raids, i" their ranks were recruited, by men sold for their 
offences, and likewise, it is said, from those who sold them- 
selves in times of starvation ; " many were sent as slaves 
beyond the seas,'^ and the fact that we find this custom 
repeatedly prohibited " testifies also to its prevalence.'* 

From the poor slaves there need be no fear of vengeance 
or retaliation ; they were a voteless minority amidst 
Saxon freemen. If a slave were slain only eight shillings 
were payable to his kinsfolk, •" while a man-bot of thirty 

' See Laws of Ine, sect. 12. Thorpe, fol. ed. p. 49. 

2 Pollock and Maitland, Hist. i. 476 and ii. 451, ed. of 1898. 

3 J. Thrupp, Anglo-Saxon Home, p. 145. 

* G. G. Coulton, Chaucer and his England, p. 293. London, 1908. 

^ Pollock and Maitland, i. 478, ii. 450. 

^ And see Early Assize Bolls for the County of Northumberland, pp. 
xviii., xix., etc. Durham, Surtees Society, 1891. 

' Stubbs, Const. Hist. p. 89. 

^ Dooms of Alfred, sect. 24. " If any one steal another's ox and 
slay or sell it, let him give two for it, and four sheep for one. If he 
have not what he may give be he himself sold for the cattle." — Thorpe, 
Laws, fol. ed. p. 23. Compare Exodus xxii. 3 ; Pollock and Maitland, 
Hist., ed. 1895, vol. ii. 514. 

^ Pollock and Maitland, ii. p. 11. 

w The intertribal wars at one time " filled the foreign markets with 
English slaves," says J. R. Green, relating the well-known story of 
Pope Gregory. — Hist. Eng. People, i. 37. London, 1881. 

" Hovenden. H. T. Riley's ed. i. p. 143. London, 1853. 

'2 A vigorous slave trade was carried on just prior to the Conquest. 
— Thrupp, Anglo-Saxon Home, p. 130. 

13 Pollock and Maitland, Hist i. p. 12. Cambridge, 1895. 

1* Law of Ine, seventh century. " If any one sell his countryman 
bound or free, though he be guilty, over sea, let him pay for him accord- 
ing to his wer." — Stubbs, Charters, p. 61. Oxford, 1884. 

Law of Mths\xeA. " Christian men and condemned persons are 
not to be sold out of the country, at least not into heathen nations." — 
Thorpe, fol. ed. p. 135. 

A law of William I. was to the same effect. — R. Schmidt, Gesetze, 

V- 347- 

i» F. W. Maitland, Domesday Book, p. 31. 



6 A HISTORY OF PENAL METHODS 

shUlings was claimed by his master.' And that, it would 
seem, was all on the part of the State." The Church, 
however, to its credit, imposed a penance, a two years 
fast.' Other injuries to the theow (slave) were treated 
with proportional mildness,* but of Church laws and 
discipline I shall have to speak presently." 

For the damage done by his slave the master was liable, ' 
as for a trespass by his cattle.' For the more serious 
offences the theow would be handed over to the kinsfolk 
of the injured party, unless perchance his master should 
redeem him by payment. « If upon accusation he failed 
at the ordeal, he was to be forthwith branded the first 
time ; ' but the second conviction would be capital, 
" seconda vice non compenset aliquid nisi caput." '" 

Apart from legal or revengeful penalties for wrongs 
done to any freeman," the theow was absolutely at the 
mercy of his master." If he were not allowed to " redeem 
his hide" by such small compensation or atonement of 
which he was capable, he might have one leg fastened by 
a ring to a stake, round which he would be lashed with 
a three- thonged whip. " It was composed of cords knotted 
at the ends." If a ceorl were goaded into homicide, 



1 JEthelbert. " If any one slay a ceorl's hlf-aeta, let him make b5t 
with vi. shillings." — Thorpe, fol. ed. p. 3. 

' Thorpe, 8vo ed. i. p. 626. 

3 Thrupp, Anglo-Saxon Home, p. 127. 

* See Theodori liber poenitentialis. Thorpe, fol. ed. p. 288. Poeniten- 
tiale Ecberti, lib. ii. 3. Thorpe, p. 368. 

5 Compare Exodus xxi. 20, 21,: " And if a man smite his servant, 
or his maid, with a rod, and he die under his hand ; he shall be 
surely punished. 

" Notwithstanding, if he continue a day or two, he shall not be 
punished : for he is his money." 

« Stubbs, Const. Hist. p. 89. 

^ ■• Omne damnum'quod servus fecerit.'dominus emendet." — ^Thorpe, 
fol. ed. p. II. 

' Maitland, Domesday Book, p. 32. 

» Or he might be scourged thrice, temp. ^Ethelstan. See Thorpe, 
fol. ed. p. 88. 

" Laws of ^thelred. D. Wilkins, Leges Anglo-Saxonicae, p. 103. 
London, 1721. 

" By Alfred's Dooms rape on a ceorl's female slave was punished 
by a five-shilling bot to the ceorl ; if a theow committed the offence, 
he might be emasculated. — Thorpe, fol. ed. p. 35. 

1' Stubbs, Const. Hist. i. p. 25. 

1' Thrupp, Anglo-Saxon Home, p. 131. 

" William Andrews, Old-Time Punishments, p. 146. Hull, 1890. 



PENAL METHODS OF MIDDLE AGES 7 

vengeance might then be taken upon six of his kinsfolk ' 
(upon the principle that the thane had six times his value,' 
see wer-gilds, ante, and Maitland, Domesday Book, p. 53). 
If a theow killed his lord ' he was to perish in torments ; * 
for revenge was sweet/ and the strong took it without 
stint.' 

Clearly, then, from the nature of early Saxon society, 
elaborate penal machinery had no place. The freemen 
atoned for their transgressions with fines when possible, 
and by slavery, mutilation, outlawry, or death when they 
could not pay. Cruelly as the slaves might be flogged or 
slaughtered, there were no prisons in the land even for 
them.' "The villages were mere groups of wooden 
homesteads with barns and cattle-sheds surrounded by 
rough stockades and destitute of roads or communications. 
Even the palace of the king was a long wooden hall with 
numerous outhouses, for the English built no stone houses 
and btunt down those of their Roman predecessors." ' 

The Teutons, according to Tacitus, abhorred walled 
towns as the defences of slavery and the graves of freedom. 
The Frisians forbade the construction of any walls more 
than twelve feet high.' In the course of time the crown, 
or central government, grew in power ; the king, and 
even the great lords, spiritual and temporal, were able to 
enforce obedience and order, at any rate upon those in 
their neighbourhood." The royal authority could defy 

1 Thrupp, Anglo-Saxon Home, p. 144. 

> E. W. Robertson, Scotland, ii. p. 450. 

s Pollock and Maitland, Hist. ed. 1898, ii. p. 450. 

* See Thorpe, 8vo ed. vol. i. p. 579 : " Si quis dominum suum 
occidet," etc. 

* F. Lindenbrog, Codex legunt antiquarum, p. 498. 

* For similar laws in ancient Wales and eighteenth-century America, 
etc., see Westermarck, Moral Ideas, i. p. 518. 

' " Imprisonment," say Pollock and Maitland, " would have been 
regarded in those old times as a useless punishment ; it does not " 
(as it was then employed and understood) " satisfy revenge, it keeps 
the criminal idle, and do what we may it is costly." — Hist. Eng. Law, ed. 
of 189s, vol. ii. p. 514. 

» Grant Allen, Anglo-Saxon Britain, p. 47. 

" E. W. Robertson, Scotland, p. 295. 

10 Laws of Ine. To fight in the king's house rendered the offender 
liable to be put to death.— J. Johnson. 

Laws of Alfred. To fight in the presence of an archbishop meant 
a fine of 150 shillings. — ^Thorpe, p. 32. , , , ., . 4. 

To fight in the house of a common man meant a mulct of thirty 
shillings, and six shillings to the ceorl. — J. Johnson. 



8 A HISTORY OF PENAL METHODS 

the vendetta, and from very early times had claimed a 
share in the compensation/ so that, along with the wer- 
gild, payable to the injured party, the wite, or additional 
fine, had to be paid to the sovereign (or overlord) for the 
disturbance of his peace. ^ 

Sometimes he would take vengeance for the State or 
for an aggrieved person.' Thus in the reign of iEthelstan 
a man might forfeit his hand for coining, and have it 
nailed over the door of the mint ; * and in the reign of 
Cnut a woman might lose her nose and ears if she com- 
mitted adultery. In the early period these mutilations 
appear to have often been intended to be mortal, for in 
the laws of Alfred and Guthrum we read that " If a male- 
factor, having forfeited himself, has had a limb cut off, 
and, being left to himself, survive the third night ; after- 
wards he that is willing to take care of his sore and soul 
may help him with the Bishop's leave." ' 

But the maimed criminals were also allowed at large, 
to be a living warning to others. That the Saxons could 
be cruel enough when bot was not made, and to habitual 
criminals and slaves, we have seen already ; how bar- 
barous the amputations were may be gleaned from the 
words of our Danish monarch : "... At the second 
time let there be no other bot if he be foul " (at the ordeal) 
" than that his hands be cut off or his feet, or both, ac- 
cording as the deed may be, and if then he have wrought 
yet greater wrong, then let his eyes be put out, or his 
nose and his ears and the upper lip be cut off ; or let 
him be scalped ... so that punishment be inflicted and 
also the soul preserved." • 

William the Norman enjoined that offenders should not 
be slain outright, but hacked about.' " Interdicimus," 
he commands, " eciam ne quis occidatur vel suspenda- 
tur pro aliqua culpa sed enerventur oculi, et abscin- 
dantur pedes vel testiculi, vel manus ita quod truncus 
remaneat vivus in signum prodicionis et nequicie sue." ' 

1 Thrupp, Anglo-Saxon Home, p. 148. 

2 See example, temp. Cnut. Thorpe, fol. ed, p. 174. 
' J. Johnson, Ecc. Laws. 

* Thorpe, fol. ed. p. 174. 

' J. Johnson, Ecc. Laws. 

' Thorpe, Laws of Cnut, fol. ed. p. 169. 

' Ibid. p. 213. 

' See Saxon Chronicle, J. Ingram's ed. p. 295. London 1823. 



PENAL METHODS OF MIDDLE AGES 9 

About the tenth century, after the ending of the Danish 
troubles, and in the eleventh under the Norman rule, the 
king was strong enough to extend his power and pro- 
tection.' In the twelfth the old system of bot and wer, 
designed to compensate the injured and keep the peace 
ainong the fierce and warlike race of freemen,' began to 
give place to one under which the king exacted punishment 
and tribute,' which he administered and collected through 
itinerant judges, sheriffs, and other officers.* 

The heavy fines imposed on places and people ' became 
an important source of revenue to the crown ' and to the 
barons and the lords of manors ' when they held rights 
of private jurisdiction ' (Sake and Soke, Courts Leet,° 
etc.), which were frequenth* delegated.'" 

The State was growing strong enough to take vengeance ; 
the common man was no longer feared as had been the 
well-armed Saxon citizen of old, and to the " common " 
criminal was extended the ruthless severity once reserved 
for the slaves. " Then likewise GlanviUe and the lawyers, " 
under the influence of Rome and Constantinople, drew 
a sharp and arbitrary distinction between the criminal 

I Stnbbs, Const. Hist. i. p. 204. 

' Maitland, Domesday Book, p. 33. 

' Often of death for serious offences, but the prisoner's goods were 
forfeited for felony ; hence it was to the profit of the government to 
have many felonies. See F. W. Maitland, Const. Hist. Eng. p. iii, 
and J. Britton, Nichols' ed. p. 35. Oxford, 1855. 

* " To them " (the subject people) " a new tribunal seemed only a 
new torment." — L. O. Pike, Hist. Crime, i. 134. London, 1873. 

5 The hundreds were liable to be fined for undetected murders — 
as villages now are in India — and also officers for neglect of duty ; see 
T. Madox, History and Antiquities of the Exchequer, chap. xiv. p. 539, 
etc. London, 1769. J. Britton, F. M. Nichols' ed. p. 138. This 
liability was abolished in the reign of Edward III. ; see W. S. Holds- 
worth, Hist. p. 8. 

« T. Madox, Hist. Exch. i. p. 425, etc. 

'' Maitland, Domesday Book, p. 52. 

8 Infangthef, the right to hang a thief, "hand having and back 
bearing." Utfangthef, the right to punish a thief beyond the particular 
boundary. 

' Holdsworth, Hist. p. ii. ; and see Stubbs, Const. Hist. i. 452, 453, 
etc. 

1" " The lord exercised . . . jurisdiction in civil and criminal suits 
which, with all the profits — for in early times the pecuniary interests 
of justice formed no small part of the advantages of judicial power- 
was conferred on him by the original gift." — Stubbs, Const. Hist. i. 
p. 102, and Holdsworth, 13, 14. 

II See Maitland, Domesday Book, p. 33. 
'2 Ihid. p. 83. 



10 A HISTORY OF PENAL METHODS 

and the civU pleas, and the idea of compensation began 
to wane before the revenge instinct now backed by power 
If there was money obtainable, the king's judges would 
seize it ; ' the idea of damage done to the individual 
was merged and lost in the greater trespass ' alleged to 
have been committed by the offender against the peace, 
against the code and king. 

Up to the middle of the twelfth century ' some counties 
were without public gaols or prisoners' cages,* and 
Henry II. commanded their construction at the Assize 
of Clarendon, 1166. By the seventh article ' gaols were 
to be made in the walled towns or erected within royal 
castles ' with the king's timber or other wood that might 
be available.' They were evidently Hght improvised 
structures ' — sheds knocked up beneath massive walls of 
city or castle. The king's strong places or the larger 
monasteries would be prisonous enough with little altera- 
tion. These early prisons of the Angevin kings were 
collecting depots or remand prisons for the safe cus- 
tody of persons accused. Bracton, who died in 1268, 
expressly wrote that prison was to confine and not to 
punish.' 

Bishop Britton ^'' (thirteenth century) says that only 
those accused of felony were to be kept in irons, and 
none were to be ill-treated except according to sentence. 

1 " So intimate is the connection of judicature with finance under 
the Norman kings, that we scarcely need the comment of the historian 
to guide us to the conclusion that it was mainly for the sake of the 
profits that justice was administered at all." — Stubbs, Const. Hist. i. 

p. 438- 

2 After Henry II. " a crime is no longer regarded as a matter merely 
between the criminal and those who have directly suffered by his 
crime ; it is a wrong against the nation." — Maitland, Const. Hist. 
p. 109, ed. of 1898. 

' L. O. Pike, History of Crime in England, i. p. 130. 

* In the period of the Civil War, however, the barons had made 
their castles robbers' caves, from which they raided the unhappy 
English. Vide The Saxon Chronicle for the year 1137. 

5 See Stubbs, Charters, p. 143. 

" The expenses for gaols at Canterbury, Rochester, Huntingdon, 
Cambridge, Salisbury, Malmesbury, Aylesbury, and Oxford are detailed 
in the Roll of 1 1 66. 

' See John Lingard, Hist. Eng. ii. p. 619. London, 1849. 

' Pike, Hist. i. p. 130. 

' " Career ad continendos et non ad puniendos habere debeat." 
— De Legibus, lib. iii. cap. vi. f. 105 

to F. M. Nichols' ed. p. 44. 



PENAL METHODS OF MIDDLE AGES 11 

In the Mirror of Justice we read that " every common 
prison ' is a gaol and only the king has the keeping 
of it '; every other man's prison is private, etc. ; and 
because it is forbidden that any one be tormented Ijefore 
judgment, the law wills that no one be placed among 
vermin and putrefaction, or in any horrible or dangerous 
place, or in the water, or in the dark, or any other tor- 
ment ; but it is lawful for gaolers to put fetters upon 
those whom they suspect of trying to escape, but the 
fetters must not weigh more than 12 oz.[?] . . ." ^ 

The captives having been collected together within 
the gaols would have to wait till the next assize. It 
might be a long time — months (as even now) or years ' — 
for the king's judges were dreaded — and of those who 
could not get mainpernors (bail),' many would die of 
want or disease before the justices were ready to try 
them. 

Meanwhile the prisoners and their families were to be 
kept at their own expense ; according to Bishop Britton' 
the gaoler was required to take nothing from the poor — 
who would in general possess nothing to be taken — and 
not more than fourpence for the keep of any prisoner.' 
None were to be detained from inability to pay the fees. 
Such were the rules approved by Edward I. In practice, 
it appears probable that, for the next five hundred years 

1 And see 5 Hen. IV. c. 10. 

' In 1295 a law was passed by which a man should no longer suffer 
death or mutilation for prison-breaking alone, unless his crime would 
have been so punished upon conviction. See statute, De Fragentibus 
Prisonam, 23 Edward I., Record Commission. Statutes of the Realm, 
vol. i. London, 1810. 

3 W. J. Whittaker's ed. p. 52. 

* In the reign of Henry HI. the judges set forth every seven years. 
— Pike, Hist. Crime, p. 135 ; and see G. J. Turner, Pleas of the Forest, 
p. XV. By 13 Ed. I. assizes were to be held three times a year at most. 
In the early part of the nineteenth century the gaols in the provinces 
were delivered only twice a year. See Blackstone, Commentaries, 
bk. iv. chap. xix. ; J. Stewart's ed. p. 352. London, 1854. W. Craw- 
'ford's remarks in his Penitentiaries of the United States, p. 37. London, 
printed for the House of Commons, 1834. 

s The gaol was his pledge or security that could find (or was allowed) 
none. — Glanville, J. Beames' ed. pp. 346, 348. London, 1812. For 
details as to who were or who were not replevisable in the thirteenth 
century, see 3 Ed. I. c. 15 and 27 Ed. I. c. 3. 

» F. M. Nichols' ed. p. 46. 

T Fourpence is mentioned as the gaoler's fee in the Liber Albus 
(early fifteenth century), H. T. Riley's ed. p. 448. London, 1861. 



12 A HISTORY OF PKXAL METHODS 

or s«.\ the pmoi^rs w-o«ld be \n>U tod if they had me^m, 
*nd inight be starved to death it they had not,* 

Those who s«nn\'ed wntil the opening of the ooxirt 
would be broii^t up, a<xxM\hn§ to Bracton,* with thw 
hands ftee, thou^ sonietimes in leg-irons. We find 
the desoiptkm an^ified hv Britton ; » they w^ere to be 
" barefooted, uncoifed and bate-headed, in their coat 
only, without irons of any kind,* so that they mi^ht not 
be deprived of ntason bv pain, nor be constrained to 
answer hv fonx\"» But thus far no punishments had 
be«i meted out ; these foflowed upon con\nction, and 
\wre of a jJiysical and sanfuinary character. 

According to Bracton, an ofifen^ might be broken on 
the wheel for treason, a crime so great that it was scarcdy 
to be permitted that the relations should li\»,* For tm 
'' common " criminal there was hanging,* and the ghasUy 
mutilations enjoined by the Xonj\;\u kiiig^ wxmv con- 
tinued ; indeed they As^eix? made more sa\'5Ȥx'> for many 
offences aft«r 1176.* Up to the rei^ of Henry 111, the 
penalty for poadiing in the kmg's toivsts was death or 
the lo^ of eyesight,* Rape up to the rx^i^n of Edw'jvrd I 
mi^t also inv^ve loss of e\-x\< and emasculation. »♦ 

Stealing from ,1 dwelling appears to ha\x^ met with the 
same barbarous punishntent. A glimpse of the $«ntle 
ways of t\wlfth-century " justice " is revealed in an 



> On tttts point se« F, A. G«sq\iftt. Ntmy VttL *m4 tht E^t^fi^ 
M^mmsttrins!, D. 4, IXMtdOB, 1906, 

* lib, iii, f, i,i!7, 

* Kichols' ed, p, 35. 

* S«« ittttstmti<m givea in Besatnt, M«4i«mi £.«iMt»M, p. 54.^ too6, 
« " 14, howev«r, tiiey i«tased to ple»d, ^«y would te piaion«d aow» 

on the )>M« SToaiul and Jted aixm brMd And dirty xKi«t«r ; but ttey 
w*Pf not to Mit on til* d*y th*y diMik, «st drink on th<(> vl*v ti»y »♦*, 
etc," — Nichoh* ed, p. 46, - V 

* '• Vvx pennittjtur h^Mdibm quod v»v*nt" — Dt Ltgihm, Ml>. iii. 
1. JlS, 

» Ttmp. Henry t„ see \V. Pii^vUk', Origimts JwiiMtitK, Loadoa, 
t6te. 

RidMrd, s»e J, F, Stephen. Hist, O^m, Uw, i, n. 458. LoRdon. 
iSS3. "^ 

Hrary HI.. s«« W. P»se. E^y Js:si» J?*«s. p, x\-iji, Pt«, 

* Bytfee .\^«^N«ria«mptott, See Stubbs, C im. WiS», i. p, h^ 
» a H«n, III,, CMt* d« Fy»rest8k ; «ad »)so o Hen. III. c 10 * "No. 

man hencef<»rtit sh»U lose ^ttker life or nMnvber tor Idllins ow deer >' 
** S««. c'*»i(m,, IngiMn's ed. p. ioo, 
iMit, p, ^S, 
M^rw of /wMm, \Vhitt»lnr>s ed. p. 14 1 . 



I'KNAL METHODS OF MIDDLK AGKS 18 

account <A a H\i\>[)()H(id miiiiclc. A certain Ailward being 
acc.iiHcd of lioiiHcbrcaiting (coriimitted apparently under 
conhidendile provocation U> recover a debt), was lodged 
lor some lime in Hedlord i'rison.' After liaving failed 
in tlie water ordeal and being convicted, be was taken 
out lo llie uhnal place of punishment, where his eyes were 
blinded, lie was mutilated, anrl the jjarts were buried in 
tiu; gnjiind. lie is said to have been restored through 
St. Ihoinii'i ol ( anterbury. 

By the time of iCdwara I. we begin to arrive iU. sen- 
tences of imprisonment, and read (jf such penalties as 
one year and then a, line, or two years in default of fine, 
in the lirst Statutes of Westminster, i-or such offences 
as carrying oil a nun, allowing a prisoner to evade prison, 
or stealing tame beasts out of parks, a sentence of three 
years might be awarded besides the customary fine. As 
wc have seen, the profits of " justice" were highly re- 
garded ; the lines were pcnjuisites of the Crown (and 
HDiiu^tiines of suijordiuiite administrators and ofi&cials as 
well). The ijrisoiVH were used as " sfjueezers" to extort 
thoni. " Imprisonment," say I'ollock and Maitland,' 
" was, as a general rule, but prepii.rat.ory to a fine. After 
a year or two the wrongd(jer might make line ; if he had 
no iiKJiiey he was detained for a while hunger, in the 
thirteenth century the king's justices wield a wide 
' (UJinmon law ' jjowcr of ordering that an offender be kept 
ill custody. They have a.n e(jiial!y wide ])ower of dis- 
charging iiim ii|)on his making a. line witii the king." 

Ill Ibuiry lll.'s i(!ign " The wrongfloer but rarely goes 
fo prison, even lor a moment." On the plea roll the 
custddialur which sends iiim lo gaol is followed at once 
by ' Miiem Iccit p(T miani niarkain ' (or whatever the 
sum might ho), n,nd then come the names of those who 
are pledgtis fm the pa,yment. ilw^ justices do not wish to 
kt!e|) him in jirisoii ; they wish to make him pay money." 
The authors just (pioled say tha,t the lines were generally 
liglil, and give siweral ins1a.nc('S *• -it doubtless depended 

I I.e. KulimlMOM, MiUiirialn /cr the IUi.lory ul Thuniax JJsoht, vol. i. 
11. I5fi. I.uudiiii, iH/j. Hiiliiriod U> by SLuplnjii, lli.\t. Crim, I.iiw, 
I. \>. p>. 

" hist. linn, '-"'"i "■ l"' S'S- 

'' IhiU. II. |>. S'ti. 

• I'or eixiiiniile, a, fino oil one niiuk (131. 4it.) fur rapo. 



14 A HISTORY OF PENAL METHODS 

much upon the judges and the reign. But wherever 
there are enclosing walls, there are certain to be abuses 
behind them.^ Judicial and administrative scandals 
kept on occurring." 

In the fourteenth century many persons are said to 
have perished of hunger and thirst/ and many died in 
prison about the time of the Black Death (i349)-* Into 
the fifteenth century the complaints continue ; we read 
the following in the Liber Albus : ^ " Whereas great out- 
cry has been made heretofore as to many wrongs and 
misprisons done by the gaole,rs of Newgate and Ludgate 
and their officers and servants, ..." and new regulations 
were made (and no doubt broken, as the others had been) 
respecting fees the prisoners should pay. 

The sixteenth century showed no advance in the matter 
of humanity.' Torture, which, legally or illegally, has 
always been a ready trick of statesmen, developed after 
1468,' and under the Tudor sovereigns the rack was ever 
creaking to extort confessions. The " common " criminals 
were treated with the utmost severity ; in 1530 an Act 
was passed by which all poisoners were to be boiled alive.* 
Burning was the penalty appointed for heresy, high 
and petty treason * {i.e. murder of a husband by a wife, 
murder of a master or mistress by a servant, '" and several 
offences against the coin), and, unlike the punishment of 
boiling, continued legal until 1790. " The right hand might 

1 See Mirror of Justice, Whittaker's ed., Introduction, pp. xxiv., 
XXXV., and ist ed. iii. c. 7. 

Holdsworth, Hist. Eng. Law, p. 39. 

W. Page, Early Assize Rolls, p. xx. 

' Of robbery by the judges, see Lingard, Hist, ii p. 217. 

3 For instance, at Northampton in 1323 ; see Coulton, Chaucer 
and his England, p. 284. 

* Pike, Hist. Crime, i. p. 288. 
" Riley's ed. p. 448. 

" See Pike, Hist. Crime, i. p. 427. 

' Maitland, Const. Hist. p. 221, ed. 1908. 

' 22 Hen. VIII. c. 9. 

On the Continent boiling alive was a very common punishment 
for coining ; the victim was generally strapped to a pole and so lay 
m the cauldron ; sometimes he was let down into it from above ; see 
Baring Gould, Curiosities of Olden Times, p. 95. 

• W. Besant, Tudors, p. 380. London, 1904 ; and see 25 Hen. VIII. 
c. 14. 

*" Stephen, Hist. Crim. Law, p. 477. 

" A man was boiled to death in 1531,; a woman was burnt in 1571, 
and m 1575.— Holinshed, Chron. pp. 926, 1226, 1262. 



PENAL METHODS OF MIDDLE AGES 15 

be taken off before hanging for aggravated murder, or a 
man might be hung in chains and left to perish.' There 
was the drawing and quartering in some executions, and 
ordinary hangings were exceedingly numerous.' Men 
lost their hands for exporting sheep and for libel,' and 
there was branding, etc., for perjury, and sometimes for 
persistent vagrancy.* 

A picture of the prisons has been left us in a work of 
1545. " I see," observes the monk whose complaint • 
is given, " also a pytyful abuse for presoners. O Lord 
God, their lodging is to bad for hoggys, and as for their 
meat it is euil enough for doggys, and yet, the Lord 
knoweth, thei haue not enough thereof. Consyder, all 
ye that be k5mgs and lordys of presons, that inasmoch as 
ye shut up any man from his meate, ye be bound to giue 
him sufficyant fode for a man and not for a dogge." He 
further declares that the charges were greater than any 
at the " dearest inn in Ingland," and says that men lay 
six and seven years in prison before the oncoming of their 
case. 

About the year 1552 the City authorities selected 
what had been a palace at Bridewell ' (given by 
Edward VL) for (among other purposes) locking up, 
employing and (as heretofore, according to Holinshed) 
whipping beggars, prostitutes, and night-walkers of all 
sorts. ' Later on similar detention places were also called 
Bridewells, after the first one at Blackfriars just alluded 
to. In 1597 they planned Houses of Correction, ' and in 
1609 it was ordered that they should be builded in every 
county.' Though they became, in practice, one with the 
common gaols, they lasted, at least in name, till 1865." 

1 Besant, Tudors, p. 379. 

2 Stepheti. Hist. Crim. Law, p. 468. 

3 Besant, Tudors, p. 380. 

* W. Andrews, Old-Time Punishments, p. 92. 

" Henry Brinklow's Complaynt of Boderwych Mors, J. M. Cowper's 
ed. London, E.E.T. Society, 1874. 

« See Holinshed, Chronicles, pp. 108 1, 1082. 

J. Wilkes, Enc. Londinensis, iii. p. 891. London, 1810. 

E. C. S. Gibson, Life of John Howard, p. 47. Lond, 1901. 
■ '' See Besant, Tudors, p. 387. 

8 39 Eliz. 4 and 5. 

' 7 Jac. I. c. 4. _ . , 

" Departmental Committee on Prisons. Minutes of Evidence, 
Appendix ii. p. 457. London, 1895. 



16 A HISTORY OF PENAL METHODS 

But to resume our survey of ordinary prisons. The 
seventeenth century affords the usual evidence of what 
walls can hide. The gaolers, as of old, appear to have 
been all-powerful ; ' sometimes friendly, often the reverse, 
always extortionate. John Bunyan, during his twelve 
years' incarceration, was allowed to work for his family 
— for a large part of the time in tolerable surroundings ; 
but while in the Gate House prison he was charged huge 
fees.' The prisoners hung collecting bags out of their 
windows on Sunday mornings. 

George Fox,' the Quaker, agreed with the keeper and 
his wife for meat and drink, chamber, and other accom- 
modation at a certain rate. But he refers to one of their 
party being put " down in the Doomesdale * amongst 
the felons, and this, it appears, was a " noysome, filthy, 
stinking hole, where was a puddle of . . . and filth over 
their shoes and the ... of the felons, the straw almost 
broken to chaffe with their long lying thereon and full 
of vermin, wherein is neither chimney nor easing house." 
Confirmatory evidence as to how felons fared in 1667 
may be deduced out of a. Statute of Charles II. ° " Where- 
as," it says, " there is not yet any sufficient provision 
made for the relief and setting to work of poor and needy 
persons committed to the common gaol for felony and 
other misdemeanom^s, who many times perish before 
their trial, and the poor there living idly and unemployed 
become debauched and come forth instructed in the 
practice of thievery and lewdness," etc. 

The excellent plan was proposed that the profits of 
the prisoners' labour should be placed to their relief. 
But we find useful labo\ir within prison walls has always 
been a most difficult problem, and the world outside 
was always far too busy to see to it. The prisons of the 
eighteenth century were very much like those that had 
been before, but perhaps we know more about them 

' As very early in the sixteenth century ; see 19 Hen. \ll. c. 10. 

' See John Brown, John Bunyan, His Life and Times, pp. 169, 
iSj, etc. 

3 The Wost answering the North : Relation of the Sufferings of George 
Fox, Edw. Pyot, and William Salt, p. 34. Printed 1657. 

* As to the pits and dungeons of an old English prison, see Charles 
Creighton, History of the Epidemics in Britain, p. 3S6. Cambridge 
1891. 

^ 19 Car. II. c. 4. 



PENAL METHODS OF MIDDLE AGES 17 

through the great work of John Howard, The State of 
the Prisons. It is a matter of history how that grim, 
conscientious Puritan went where the ruling classes 
neither cared nor dared to venture.' For, besides the 
dreadful stench which stuck to his notes and garments, 
deep in the windowless (window tax), airless rooms and 
dungeons through which he went, down in the stale, 
cramped yards ' — when there were any — without space 
or sun, and in which even the supply of water was mostly 
beyond the bounds, and so inaccessible," rising amidst 
the putrefaction of those places, there lurked the dreaded 
typhus or gaol fever, which was spread mainly by the 
vermin. 

It had always been about since prisons were used, and 
sometimes proved the Nemesis of neglect.* In 1522, 
at the assize in the castle at Cambridge," many of the 
Icnights and gentlemen attending caught the infection 
from the " sauor of the prisoners or the iilthe of the 
house." Writing of the year 1577, we read in Baker's 
Chronicle : ' " About this time, when the judges sate at 
the Assize in Oxford, and one Rowland Jenks, a book- 
seller, was questioned for speaking opprobrious words 
against the queen, suddenly they were surprised with a 
pestilent savour, whether rising from the noisome smell 
of the prisoners or from the damp of the ground is un- 
certain ; but all that were present, almost every one, 
within forty hours died." Much the same happened 
at Exeter in 1586 ' and at Taunton in 1730, and some 
hundreds perished at both these places. 

Thomas Allen, in his History of London, ' relates that in 
1750 " The Lord Mayor, some of the aldermen, two of 
the judges, the under sheriff, many lawyers, and a number 
of lookers-on, died of the gaol distemper." The prison 

1 The State of th» Prisons, pp. 8 and 9. Warrington, 1780. 

• Maiiy prisons had no yards or courts of any Itind. See J. B. 
Bailey, Th» Condition of the Gaols as described by John Howard, chap. ii. 
London, 1884. 

' Ibid. p. 16. 

• See E. F. Du Cane, Punishment and Prevention of Crime, chap, iii . 
p. 43, etc. London, 1885. 

• Hall's Chronicle, p. 632, ed. of 1809. 

• r. 353. London, 1730. 

• Crelghton, Epidemics, chap. vU. p. 383. 

• Vol. ii. p. 48. London, 1827. 



18 A HISTORY OF PENAL METHODS 

was afterwards cleansed ! Howard asserts that in 1773-4 
more people died from the gaol fever than were executed 
in tlie kingdom ; ' we lost 2,000 sailore (criminals were 
often given the choice between punishment and the 
services) with the fleet in the war with America.' He 
quotes Lord Bacon as saying that the most pernicious 
infection next to the plague is the smell of the jail.' 
Such were tlie mephitic dens into which were cast men, 
women, and children of all sorts ; and there they would 
rot away or survive, as the case might be, until the expira- 
tion of then- (generally short) sentences of imprisonment, 
if they could pay the fees charged on their coming out ; 
or vmtil they ultimately came up for trial, after which 
they would either be acquitted and discharged (again when 
they paid the fees), or they would be convicted and trans- 
ported or executed. ' 

The number of capital offences was truly enormous. 
Onward from 1688 they steadily increased,' owing, as has 
been well remarked, to the " unhappy facility afforded 
to legislation by Parliamentary government. ' ' ' Members 
who could not become ministers, and who yet wanted to 
do something, often had interest enough to hang some- 
body, or at least to get a law passed creating a new capital 
felony.' 

Thus, through the ambitions of private members and 

• State of the Prisons, p. lo, ed. of 1780. 
» Ibid. p. 13. 

' Ibid. p. 12. See also Jacob Hive, House of Correction. London, 

1757. 

• There were always a few poor creatures who, although sentenced 
to transportation, were left behind to remain in prison, a fate worse 
tlian exile, and perhaps worse than death. See Dept. Com., 1895, 
Appendix, p. 459, and E. F. Du Cane, Crime, p. 115. 

' " . . . Of the 160 offences referred to by Blackstone as punish- 
able by death, four-fiftlis had been made so during tlie reigns of tlie 
first three Georges." — J. A. M. Irvine, Chambers's Encyclopadia, ii. 
p. 743, art. " Capital Punishment." London, 1888. 

• James Mackintosh, Miscellaneous Works, p. 718. Speech on the 
state of the Criminal Law, House of Commons, 2nd March, 18 19. 
London, 1851. 

' " The anecdotes which I have heard of tliis sliameful and injurious 
facility I am almost ashamed to repeat. Mr. Burke once told me that 
on a certain occasion when he was leaving tlie House one of the mes- 
sengers called him back, and, on his saying tliat he was going on urgent 
business, replied : ' Oh, it vnll not keep you a single moment ; it is 
only a capital felony without benefit of clergy." " — Mackintosh, Mis- 
cellaneous Works, p. 718. 



PENAL METHODS OF MIDDLE AGES 19 

the general callousness of the ruling class, the number 
of capital offences kept ever growing, until, in theory, 
there were more than two hundred of them.' The law, 
however, had overreached ; rough and often most brutal 
as the people of that day were, they would not enforce 
the penalties provided,' so that the hangman's ministra- 
tions were invoked for only twenty-five classes of offences 
in London,' and for not more than thirty throughout 
England.* In fact, it was found that conscientious people 
refused to prosecute for the lesser crimes, dreading to 
have a share in taking life. But actually the gallows load 
was heavy ; an instance appeared in a Times • para- 
graph — i8th January, 1801 — which tells how a certain 
Andrew Branning, a luckless urchin aged only thirteen, 
had broken into a house and carried off a spoon. Others 
were with him, but they ran away, and only he was 
captured and brought to trial. His story ended in two 
words, which were short and customary : Guilty — 
Death. Thus transportation and the extreme penalty 
kept clearing the prisons, but those within them were 
the while exploited, being entirely the prey and property 
of warders, keepers, and assistant gaolers, all of whom 
made the most of their positions — which might be given 
out like pensions or be purchased ' — to wring out fees ' 
and make their places pay ;' and having what amounted 
to unlimited power, and being, by the nature of their 
office, used and inured to witnessing suffering, the gaolers," 
from the beginning and right into the eighteenth century, 
shrank from no means, however mediaeval, by which 

1 Mackintosh, Miscellaneous Works, p. 718. 

2 There grew up, as an eminent judge of those days has declarea, 
"a general confederacy of prosecutors, witnesses, counsel, ]U"es, 
judges, and the advisers of the Crown, to prevent the execution of the 
criminal law."— Sir Wilham Grant, quoted by Mackintosh, p. 719- 

' Irvine in Chambers's Encyclopadia, ii. p. 743- 

• Mackintosh, p. 718. 

" Reprinted in the Times, i8th January, 1901. 

• Du Cane, Crime, pp. 35, 36. 

T Howard, State of the Prisons, p. 22. 

• See 8 & 9 Will. III. c. 27, a.d. 1697. , . , . r^ tt 

• See, for instance, the removal of Governor Bambndge by 2 Geo. 11. 

T.Bird, Letters from the Shades. London, 1729. , ,. „ 

Re Governor Huggins, etc., see Report of a Committee of the House 
of Commons, pp. 25, 26, 27. London, i739. 



20 A HISTORY OF PENAL METHODS 

they could extract their fees and charges. ' V^^"^\ 
screws and iron skull-caps were sometimes used," and 
were produced in court as evidence.' 

Prisoners might be loaded with heavy irons unless 
they would pay to be allowed lighter ones.* They were 
liable to be flogged with ropes or whips or anything that 
came handy,' the common instrument of flagellation, 
however, being the formidable membrum tauri.' They 
might be kept in damp dungeons and darkness ; the 
living were sometimes locked up with the dead. They 
could be set apart and purposely exposed to utter starva- 
tion,' gaol fever, and small-pox, or actually done to death 
by their keeper's violence.' 

The prisoners were robbed for room, squeezed for food,' 
and dealt with for drink of all kinds, spirits, and tobacco, 
in which the officials did a roaring trade." Lastly, the 
new arrivals at a prison were fleeced and pillaged by 
their fellow gaol-birds for " chummage" or " garnish" 
money," and failing this, they were frequently stripped 
of their very clothing, a process termed " letting the 
black dog walk." " 

And in all these vile places there was generally no 

1 Gaol fees were abolished in 1774 by 14 Geo. III. c. 20. 

2 J. M. D. Meiklejohn, Hist. Eng. ii. p. 276. London, 1890. 

" See The Tryal of William Acton, Deputy-Keeper of the Marshalsea 
Prison, p. 4, etc. London, 1729. 

And also Cases in Parliament, 1684-1737. British Museum, 515, 
1- 5 (39). »'« Bambridge, etc. 

* Howard, p. 17. 

" Tryal of Acton, p. 5. 

" See Murray, English Dictionary, under " Bull," iv. B. 

' See Report of the Committee of 1729, p. 9. Brit. Mus. Cat. 522, 
m, 9 (28). 

8 There were seven trials for murder in 1730. — Du Cane, p. 36. 

" The old-time prisoners depended mainly upon their friends and 
upon outside charity for their sustenance (yide Britton ; Bracton, 
lib. iii., etc.). After the reign of Elizabeth they were supposed to 
rec*:ive \d. or 2d. a day, or seven to eight ounces of bread. (Du Cane, 
p. 40.) 

From 1759, by 32 Geo. II. c. 28, each debtor was ordered to receive 
2s. ^d. a week from his detaining creditor, but Howard found (p. 6' 
that, in practice, they could not get it, and numbers actually starved 
10 By an Act passed in 1784 (24 Geo. III. c. 54) the gaolers were t< 
receive payment as compensation for the loss of their former profit 
made out of alcohol, which they were thereby forbidden to sell t< 
prisoners from the year 1785. 
1' Howard, p. i6. 
" Report of the Committee of 1729, p. 2. 



PENAL METHODS OF MIDDLE AGES 21 

production of anything. The prisons and Bridewells 
were supposed originally to set rogues to work,' but the 
authorities took no trouble to organise it, and through- 
out the detention-places useful employment (if we except 
occasional work done for the gaoler, or permitted in 
particular instances) was impossible. It was found in 
1818,' that out of the 518 prisons in the United Kingdom, 
in 445 there was no employment, and that in the re- 
maining 73 it was of the slightest possible description. 

Such were the bad old prisons of the past. Their 
faults were many, glaring, and obvious, but they had yet 
a human side, too, and a better one. Though the idiot 
might be laughed at and the new-comer despoiled, though 
the keepers might be brutal and the atmosphere poisonous, 
still in the midst of evil there would be individual acts 
of kindness and self-sacrifice. If the captives were in 
chains and rags,' they were not cut off from the outside 
world or striped and spotted in a livery of shame.* If 
gaols were hotbeds of infection and cesspools of corrup- 
tion," at least they were not the ghastly whited sepulchres 
which were built in the nineteenth century. 



Mitigations and Peculiarities 

So far we have endeavoui-ed to trace the course of the 
usual punishments inflicted in various ages on the 
" common" criminals when they were brought up charged 
with the graver crimes. There were, however, ways of 
escape open, which are sufficiently general and important 
to be dealt with separately. 

The Ordeals.— The invocation of miraculous guidance, 
to determine the guilt or innocence of a person accused, 
has been resorted to from time immemorial by all manner 
of methods throughout the four continents. 

There were many ordeals in medieeval England. There 

* Howard, p. 5. . 

• Mayhew and Binny, " Criminal Prisons of London " (quoting 
from the Fifth Annual Report of the Prison Discipline Society), p. 97- 
London, 1862, 

8 Du Cane, p. 43. . , u j 

* London Prisons (British Museum Catalogue, 6056, b. 74), bound 
pamphlets, p. x. JLondon, 1789, 

• Du Cane, p. 41. etc. 



22 A HISTORY OF PENAL METHODS 

was the corsned, or consecrated barley-caie, which was 
supposed to choke a perjurer if he tried to swallow it ; 
when mouth and throat were dry from fear or excitement 
this was qtiite possible. There was a test by immersion, 
in which the accused had to sink two eU5 deep — over 
seven feet. A rope was attached round the body, and 
it is interesting to notice that Archbishop Htncmar 
(ninth century) gave express directions for the rescuing 
of those who, by thus sinking, were declared to be inno- 
cent. ^ There wels a test tried with hot water, m which 
a stone had to be picked up out of boiling liquid without 
the arm beiog scalded. TTiere was a test, to pass which 
the hand had to be inserted into a glove of hot iron with- 
out being biumed by it. There was a test in which the 
suspected person must walk through flames without 
being scorched. There was a test which consisted in 
having to walk over nine red-hot ploughshares, blindfolded 
and unseared.- 

Perhaps, however, the best-known ordeal was that 
which was worked out with a heated iron bar or ring.' 
This generally weighed three pounds, and had to be 
carried — they were always personal and picturesque in 
the middle ages — for a distance of nine times the length 
of the bearer's foot.* His hand was then bound up and 
left alone for three days.' At the end of these it was 
examined, and if found clean and free from suppuration * 
the accused was acquitted. 

Doubtless, in deeply superstitious times the ordeals, 
with their solenm prayers and incantations, were fairly 
effective. But yet they do not seem to have been alto- 
gether trusted, at any rate in the later period,' since 
even those who passed successfully through them were 
obliged to quit the country within forty days.' Most 
people, however, who underwent ordeals had been 

1 E. B. Tylor in Ency. Brit, ninth ed. art. " Oideal." 

* For account of the elaborate ritnal, see W. Besant. Medueval 
London, vol. ii. chap. vi. 

W. Dngdale, Origines JuridiciaUs, chap, vtjt- 
' Stnbbs, Charters, p. 71. 

* Besant, Medueval London, iL p. 193. 
5 Thorpe, fol. ed. p. 517. 

* Glanvilie, J. Beames' ed. p. 350, note. 
7 Maitland, Const. Hist. p. 128. 

» Reeves, Hist. Eng. Law, i. p. 234. London, i860. 



PENAL METHODS OF MIDDLE AGES 23 

(^raigned by twelve knights of the county (who thus 
resembled a Grand Jury) and were already mider grave 
suspicion ; ^ the ordeal, then, could only say not proven. 
Moreover, it would appear from various sources that 
the tests and trials were frequently tampered with,' the 
elaborate ritual giving plenty of opportunity ; ' at least 
one king scoffed at priestly acquittals.' 

After incurring the disapproval of many Popes, the 
ordeals were condemned at the fourth Council of Lateran 
in 1215, and by the eighteenth canon priests were for- 
bidden to pronoimce their blessing upon them.' The 
ordeals were abolished in England in the reign of 
Henry III. and the juries took their place.' 

Another species of ordeal, and certainly another means 
of escape from the criminal law, was the wager of battle. 
This very ancient mode of trial ' was introduced into 
England by the Normans under WiUiam I. If a man 
made a charge against another, and proofs of guilt were 
not obvious and overwhelming, the latter coiild demand 
trial by battle,' unless the complainant were over sixty 
years old or were sick and infirm,* or laboured imder 
some physical disability," in which case he might choose 
the ordeal." Priests, infirm persons, and women might 
have champions to represent them." The knights fought 
with their usual weapons," the plebeians with staves 

* Pike, Hist. Crime, p. 131. 

> Madox, Hist. Exchequer, i. p. 546. 

* Ency. Brit., art. " Ordeal," p. 820, ninth ed. 

♦ E. A. Freeman. History of the Reign of William Rufus, i. pp. 156, 
157. London, 1882. 

" P. Labb6, Sacrorum Conciliorum, torn. xxii. p. 1007. Venice, 
1778. 

• Stubbs, Charters, p. 25. 
' Id., Const. Hist. i. 314. 

• Unless he went to the ordeal, or, in the later period, to a jury. 
See W. Forsyth. History of Trial by Jury, p. 202. London. 1852. 
Twiss's Bracton, ii. 403. 

* Peers, on account of their position, and citizens of London, on 
account of their supposably peaceful avocations and by charter, were 
exempt from having to accept a challenge. — Blackstone, Commentaries, 
lib. iv. , 

" The loss of certain teeth was looked upon as a handicap— the 
peasant fighters made a horrible use of them. Vide H, C. Lea, Super- 
stition and Force, p. 131. Philadelphia, 1878. 

" T.ingard, Hist. Eng. ii. p. 224. 

" Reeves. Hist. i. p. 61. 

i> Lingaid, ii. p. 222. 



24 A HISTORY OF PENAL METHODS 

forty-five inches long, which were tipped with iron heads 
shaped like rams' horns.^ They were to be bareheaded, 
barefooted, and close-shaven; and so they fought tUl 
death or surrender, » at first with the clubs, and after- 
wards, failing them, in hideous grapple, killing as best 
they could. If the accuser were defeated he could be 
committed to gaol as a calumniator,' but was not to 
lose Hfe or limb ; he was, however, fined sixty shillings 
and lost civil rights.* 

If the person who was accused — were he knight or 
peasant — yielded, he was then forthwith hanged or 
beheaded as being guilty. '^ If, however, he prevailed in 
the combat or defended himself till the stars came out,' 
he might leave the field as being acquitted, ' unless, per- 
chance, the justices desired to put him on trial for some- 
thing else, which they occasionally did. 

The custom of trial by battle, along with all other 
kinds of ordeals,' dropped out of practical usage during 
the thirteenth century,' but continued the law for five 
hundred years afterwards. In 1818 it was recalled into 
action.'" One Abraham Thornton was strongly suspected 
of having outraged and murdered a girl, Mary Ashford, 
Although he was acquitted when tried by a jury, he was 
immediately accused by her brother and heir-at-law, 
and claimed to defend by the wager of battle. The fight 
was refused by the plaintiff, and shortly afterwards 

'■ Besant, Mediizval London, ii. p. 198. 

^ Ibid. p. 196. 

3 Twiss's Bracton, ii. p. 405. London, 1879. 

* Lingard, ii. p. 223. 
5 Id,, Hist. p. 224. 

* Blackstone, bk. iv., Sharswood's ed. ii. p. 348. Philadelphia, 
1878. 

' Bracton, Twiss's ed. p. 405. 

s It grew to be condemned by the Church. See, for instance, 
C. Vdlentinum, iii. c. 12, held a.d. 855, 

° Unhappily to be succeeded by a dreadful revival of torture all 
over Europe, where it was in full blast in the fourteenth century, and 
in England from 1468. Having abandoned supernatural means of 
extracting men's secrets. Church and State made ruthless and pitiless 
use of more material methods. The Inquisition took up torture, and 
the custom spread to the lay courts tpwards the end of the thirteenth 
century. Consult, for instances. Lea, Superstition and Force, pp. 421, 
458 ; Maitland, Const. Hist. p. 221 ; Lea, History of the Inquisition 
in the Middle Ages, i. p. 423, etc. New York, 1906. 

"> Bamwall and Alderson, Report of Cases, i. pp. 405, 436, etc. 
London, 181 8. 



PENAL METHODS OF MIDDLE AGES 25 

there was passed " An Act to abolish Appeals of Murder, 
Treason, Felony, or other Offences . . . and Wager of 
Battel," ' so it could not be claimed again. 

Another haven of refuge from the clutches of the State 
was found within the pale of Sanctuary. Although, 
like prayer or sacrifice,^ existing round the globe from the 
beginning, we may confine ourselves to Christian shelters, 
as they alone affected our laws. 

The early Church doubtless afforded refuge as soon 
as it possessed the power to do so, and gave asylum 
from the reign of Constantine." Laws were made on the 
right of refuge by Theodosius in 392,* and the boundaries 
of sanctuary were extended by Theodosius junior in the 
fifth century," whUe many kinds of offenders were de- 
barred from it under Justinian (483-565).° 

The saving power of sanctuary ' would seem to have 
been but feeble and tentative in the earlier period, since 
debtors to the State, Jewish converts who were debtors, 
heretics and apostates, the slaves of orthodox masters 
(the slaves of heretics and heathens obtained their free- 
dom '), and persons guilty of the more serious offences, 
were refused privilege.' 

But the protection of the mighty Roman Church was 
to be something more than a mere respite for the lesser 
grades of offenders. In the year 511a Council of Orleans " 
ordered that criminals who sought refuge in a church or 
house of a bishop should not be dragged forth from it. 

1 59 Geo. III. c. 46. 

2 See, for instance, Westermarck, Moral Ideas, ii. 628' seq. 

3 J. Bingham, Antiquities of the Christian Church, iii. p. 203, Oxford, 

I8SS- 

* Ibid. p. 204. 

5 Ibid. pp. 205, 217. 

* Ibid. p. 213. 

' H. H. Milman, History of Latin Christianity, ii. p. 59. London, 
1864. 

' Bingham, iii. pp. 209, 211. 

' By the Dooms of Alfred there w£is but a three days' sanctuary in a 
mynster-ham. A fugitive was not to be dragged from a church for 
seven da5rs, though none were to bring him any food the while. — 
Thorpe, fol. ed. pp. 27, 28, 29. If he delivered up his weapops, however, 
it appears he might dwell in safety for thirty days, wjiile his relations 
were got together to ransom him. — Thorpe, p. 29 ; Reeves, i. p. 32. 
On tys thirty days' refuge allowed in the early Church, see Bjngham, 
iii. p. 207. A deliberate murderer niight be plucl^ed from the altar, 
just as by Hebrew law, — Thorpe, p. 27. 

*" Concilium Aurelianse, Labbe, torn. viii. p. 350. 



26 A HISTORY OF PENAL METHODS 

Even the slave given up to his master was not to be hurt 
by him. About a century later Pope Boniface V. (619- 
625) 1 commanded that none who had taken refuge should 
be abandoned. The same spirit is found in the Decretum 
Gratiani compiled in 1151. Pope Innocent III., in a 
letter written in 1200,^ ordered that only night robbers^, 
bandits, and persons doing violence within the church 
should be given up.' And this we find reaffirmed by 
Gregory IX. in the year 1234.* In 1261 Boniface, Arch- 
bishop of Canterbury, in his Constitutions," expressly 
forbade that any obstacle should be placed in the way 
of food being brought to such as were in a sanctuary — 
so much had the Church increased in power since Alfred's 
time — and that any should be molested, who, having 
taken it, had forsworn the country.' 

The exiles to whom this thirteenth-century archbishop 
alludes were persons who had fled into churches, where 
they could then claim refuge for forty days. ' The build- 
ings were watched that no one should escape, and if a 
man got away the parish was fined. At the end of this 
period the refugees must surrender,' but they might 
make an oath before the coroner admitting their guilt, 
and also promising to quit the realm. A road and port 
of destination were then assigned them,' and they might 
travel thither " with a wooden cross in their hands, bare- 
footed, ungirded, and bareheaded, in their coats only." 
And," said the king, " we forbid any one under peril of 
life and limb to kill them so long as they are on their 
road pursuing their journey." '^ But they would forfeit 
goods and chattels if they had any." 

1 J. L. Mosheim, Ecc. Hist. i. p. 461. London, 1863. 

2 Migne, Patrologiae, torn. 216; " Regni Carraclae," p. 1255. 
' Bingham, iii. p. 214. 

* A. Friedberg (Decretal Gregor. IX. lib. iii. tit. xlix. cap. vi.), Be- 
cretalium Collectiones, ii. pp. 655, 656. Leipzig, 1881. 

" John Johnson, Ecc. Laws, quoting Spelman, ii. p. 305. 
" The Statute 9 Ed. II. c. 10 (1315) is also to this effect. 
' Besant, Mediieval London, p. 201. 

• Ibid., p. 212. 

' Frequently Dover, where numbers congregated awaiting shipment. 
See Pike, Hist. Crime, i. p. 232. Clerks were not forced to go. 

'" Britton, lib. i. ch. xvii. 

11 And see 9 Ed. II. c. 10 : "They that abjure the realm shall be in 
Peace so long as they be in Church or Highway." 

" Blackstone, Corrm?n(aries, bk. iv., Sharswood's ed. ii. p. 332. Phila- 
delphia, 1878. 



PENAL METHODS OF MIDDLE AGES 27 

Under the masterful tyranny of Henry VIII. it was 
held that too many British subjects escaped this wise, 
and it was enacted in 1530 ^ that those who had taken 
sanctuary should not leave the realm, but should be 
sent to one of the privileged places (if it were not full, 
which at that time meant if it contained not more than 
twenty people), there to remain as sanctuary persons 
for the rest of their lives ; and they were also to be branded 
on the thumb.' 

The great sanctuaries comprised Westminster Abbey, 
and at least thirty other celebrated monasteries,' amongst 
which were St. Martin-le-Grand, Beverley, Hexham, 
Durham, and Beaulieu, which possessed special charters 
and immunities.* Though traitors, Jews, infidels, and 
those guilty of sacrilege were not to be received, and 
though even the peace of a minster might, in the strifes 
of State, be broken through as in 1398, or evaded as in 
1483, yet those within were generally safe from all men. 
A follower of Jack Cade " was protected against the king, 
and even one of the murderers ' of the little princes in 
the Tower found refuge in St. Martin's Sanctuary.' 

There were whole colonies of these fugitives round 
the great abbeys already mentioned, " The right of 
asylum," says Dean Stanley,* " rendered the whole pre- 
cinct a vast Cave of AduUam for all the distressed and 
discontented in the metropolis who desired, according 
to the phrase of the time, to take Westminster." But 
the power of the State increased more and more, and the 
dominion of the Church was sapped away. In 1487' 
King Henry VII. obtained a Bull from Innocent VIII. 
which allowed malefactors to be taken from the sanctu- 
aries if it were proved that they had sallied out from 
them to commit crimes. In 1504 he procured a Bull 
allowing him to take out persons suspected of treason. 
In 1534 King Henry VIII. said that lese-majesty was 

1 22 Hen. VIII. c. 14. 

^ As to branding, vide 21 Hen. VIII. c. 2. 

3 A. P. Stanley, Westminster Abbey, p. 346. London, 1882. 

* Besant, Meditsval London, p. 202. 
° Ibid. p. 206. 

° Bingham, iii. 215. 
^ Besant, p. 208. 

• Stanley, p. 346. 

» H. A. L. Fisher, Pol. Hist. Eng., p. 21. London. 1906. 



28 A HISTORY OF PENAL METHODS 

treason, and deprived those guilty of privilege.' In 
1535 sanctuary persons were forbidden to carry weapons 
or to go out between sunset and sunrise.^ In 1540 many 
sanctuaries were extinguished, and several offences, such 
as wilful murder, rape, burglary, and arson, were ex- 
cluded from privilege.^ 

The sanctuary at the Abbey was broken up in 1566,* 
and doubtless all the others came to a sudden end upon 
the dissolution of the monasteries. In 1604 the old 
rules and laws about sanctuaries were repealed. ' In the 
year 1623 all rights of refuge were taken away.' The 
idea lingered in the popular imagination, however, and 
in 1697 it had to be pointed out by statute that arrests 
for debt could be made in " pretended privileged places." ' 
These districts (such as the Mint, Suffolk Place, etc.) were 
alluded to again in 1722,' and likewise in 1724 ' as regards 
Wapping, Stepney, in Middlesex — more than a century 
after legal abolition. 

Yet another way was open to people of good position 
or repute by which they could extricate themselves from 
the ordinary course of law '" (but not against the suit 
of the king, and there were also other limitations), and 
that was by means of formal Compurgation. We have 
seen that in Teutonic communities the oath of a slave had 
no legal value, while the oath of a thane was worth those 
of six labourers. Thus kings and bishops might some- 
times rebut accusations by means of their word alone." 
The Visigoths allowed an accused person (of credit) to 
reply in this manner,'^ but the practice was condemned 
by the Church as inciting to perjury. " 

The usual course " was for the accused to obtain eleven 

1 26 Hen. VIII. c. 13. 

2 27 Hen. VIII. c. 19. 

3 32 Hen. VIII. c. I2. 

* Stanley, p. 352. 

5 I Jac. I. c. 25, s. 34. 

^21 Jac. I. c. 28, s. 7. 

' 8 & 9 Will. III. c. 27. 3. 15. 

• 9 Geo. I. c. 28. 
'11 Geo. I. c. 32. 

1" Ency. Brit. art. " Wager of Law." 
11 Lea, Superstition and Force, p. 23, 
" Ibid. p. 21. 

" C. Valentinuni, iii. c. xi., a.d. 855. 
1* ForsytU, p, 76, 



PENAL METHODS OF MIDDLE AGES 29 

or twelve compurgators '—relations, neighbours, or 
fellow'craftsmen who would swear with him to the 
justice of his cause.= Perjury was indeed often suspected 
in these compurgations, and if a man of bad character 
got his CO- witnesses ' (and if he could not he was gener- 
ally sent to the ordeal) he was frequently banished in 
spite of their testimony. * 

In the beginning of the thirteenth century Pope 
Innocent III. modified the oath,' and afterwards wit- 
nesses swore only to character, to the^r belief in the 
accused's credibility. Compurgation appealed especially 
to the clergy,' and was even called the Purgatio Canonica.'' 
Cut off by their calling from all lay connections, they 
could rely more upon their own brethren. It was by 
solemnly swearing with twelve priests as compurgators 
that Pope Leo III. elected to clear himself from certain 
accusations, in the presence of Charlemagne (in a.d. 800) ; ' 
and in 803 that emperor ordered priests to defend them- 
selves by taking an oath with three, five, or seven com- 
purgators. The practice began to decline towards the 
close of the twelfth century,' but still lingered on into 
the sixteenth century in England, and in isolated cases 
to later times. The Wager of Law was not formally 
repealed tiU 1833." 

The Rule of the Church 

The Christians had always been an exclusive body of 
people, at first from fear, and afterwards from fanaticism. 
They excommunicated all offending members, thus not 
only cutting them off from fellowship, but also depriving 
them of those rites which in their creed were necessary 
for salvation. This custom of excluding from communion 
was from the first a formidable spiritual weapon among 
believers ; what it became when the Christians could 

» Reeves, Hist. i. p. 33. 

2 Holdsworth, Hist. i. p. 138. 

3 Reeves, p. 33. 

* Holdsworth, p. 139. 

5 Lea, Superstition, pp. 66, 81. 

8 Holdsworth, Hist. i. p. 138. 

■? Lea, p. 35. 

8 Ibid. p. 33- 

» Ibid. p. 64. 

■1* 3 & 4 Will. IV. c. 42. s. 13. 



so A HISTORY OF PENAL METHODS 

also vridd the sword of temporal power we shall s<^ in 
the couise of time. In the e^^riy d-.y? they were a wtrid 
within the wtaid — ^vehement in convictions, stimulated 
by persecutions, and extreinel\' well organised. 

Their bishops arbitrated and ruled in ecclesiastical 
matters * and also in ci\-il suits between individuals who 
wa^ unwilling to j:o to law before \mbelie\"ers ; and 
doubtless they sat in judgment on their own followers 
before the advent of the k-c-J-vt Ecclesi^.stical Courts of 
subsequent ages.* From the Apostolic times they had 
resented resort to external tribunals.' and, in a series of 
Coimcils,* the Church had forbidden api->eal to the ci\Tl 
powers against the decisions of Christian Coims ; by 
the eighty-seventh Canon of the Fourth Cotmcil of Car- 
thage (A.r>. 3oS^ no Catholic was to bring any cause, whether 
just or imjust. before an heretical judge. 

The time came when the State accepted Christianity, 
and when that religion influenced the laws.' Unda- 
Constantine the ci\-il omcers were obliged to carri' out the 
decrees of the Christian bishops, who exercised a wide 
jiu-isdiction. In 376 their Covnts were gi\'en the same 
status as belonged to those of the imperial m,\gistrates.* 
From the beginning, and imder the Theodosian and 
Justinian Codes the bishops possessed great disciplinarv' 
powers : and after the death of Charlem.vgiie, in the 
midst of a period of \-iolence and disruption, the Ecclesi- 
astical Coiu-ts were hrmly established and gaiitevi in 
power as the centiu-ies went by, ' They had their own 
rules and codes to determine cases.* .vnd came to adjudi- 
cate upon m,\ny things which do not concern us. such as 
tithes, breaches of covenant, births, marriages, and wills.' 

• S. CheeTi.im. H'.s:.-iy o/ ;W Ci/k<.i'.tK C«!.».-.« .:j.'!«Jj: iit First Si.t 
Cefitttries, p. 171. London. 1^04. 

» Stubbs. CoKj^. His', i. p. J'O". 
' I Coiinthians %-;. 

• In .\,D, j_ji by the ele\'enti» and txrdftii Canons of tiie Council 
of Antics:li ; ia ;o- by the ninth Canon of the Third Cour.oi! of Cartilage ; 
and in 451 by the ninth C-vnon of the Council of O.-Jeedon. 

• Lingard, Hi^. ii. p, ijo, 

• Cheetham, p. i - 1 . 

• H. C. Lea, His;..-r\' o/ /A# 7«t,-w!>)'!o« f«! •4s' .Vii:„vV .-Ic'^c. i. p, ^09, 
Xew York. looo. 

• Canons of Council. Papal Decrees, and the many CollectiaiK, 

• See Lingard. ii, 126, 

J. Johnson, L.s,t,c .}«,!' Cauo'j.';, 11. p. iSo, notx? F. ed, i,<.;i. 
N. Marshall, FfmUittiji Dia-^fiiKf, p. i;6. 



PENAL METHODS OF MIDDLE AGES 31 

After the appearance of the Collection of Ivo of Chartres 
(b. 1035, d. 1115)/ and still more upon the compilation 
of Gratian's Decretals (a.d. 1151), they began to rival, 
if not surpass, the Secular Courts in reputation and 
influence.* The Courts Christian were the defenders of 
dogma ; in those times, without right believing nothing 
else profited. The Church Courts also enforced Christian 
moralitj'. ' The bishops," says Archdeacon Cheetham,' 

took cognizance, as was natural, of matters which were 
rather offences against the moral law than against the 
State, and sometimes succeeded in overawing even 
high-placed offenders." " The doctrine of penance," 
says Mr. Thrupp, " dealt with a series of immoralities 
which the laws disregarded." ' 

It used to be a custom in ancient times for the bishop 
to go jovmieyiriig through his diocese. As he entered 
each parish he would be met by the inhabitants, from 
amongst whom he would select seven men of mature age 
and strait character, ' who were then sworn on holy relics 
to relate all they knew, or possibly imagined, about 
their neighbours and their shortcomings. The bishop or 
his archdeacon ' would then investigate and summon 
suspected persons before them for exEimination and 
sentence.' 

It would appear that these inquisitions with the Testes 
Synodales could be extremely punitive when undertaken 
by a ^Tgilant and censorious Christian moralist. We 
find that an energetic Bishop of Lincoln so harried his 
diocese,' and with amazing and minutely personal ex- 
aminations imearthed so many scandals among sil 

<■ Stubbs, Charters, p. 136. 
' Lingard, Hist. ii. p. 126. 
' History of thi Christian Church, p. 171. 

* Anglo-Saxon Home, p. 254. 

» Lea, Inquisition in the Middle Ages, i. p. 31:;. 

* They would be brought before the Court by its apparitors, of 
whom there were many ; citations were not to be made through the 
vicars, rectors, or parish priests, lest the secrecy of the confessional 
should become mistrusted and the people cease to confess their sins. — 
Vide Archbishop Stratford, a.d. 1342, C. Land. Can. 8. J. Johnson, 
Laws and Canons, ii. p. 371. Chaucer has given us a specimen of one 
of those " moral " agents in his accounts of the sumptnour or summoner. 

'' As usu£d, blackmailing was not infrequently resorted to. Vide 
H. W. C. Davis, England under Normans and A ngevins, p. 209. London, 
1909. 

* See S. Pegge, Life of Bishop Grosseteste, p. 183. 



32 A HISTORY OF PENAL METHODS 

ranks of the people/ that he was checked by Henry III/ 
Although the nations and the laws of Europe ceased 
to be pagan, and became Christianised, the Church, with 
its haughty claims and well-learned rulers, sought for 
autonomy. Had not the Apostle Paul said that they 
should judge angels,' and that the saints some day should 
judge the world ? * After such a text it was easy to claim 
that the Emperor Constantine had declared at the great 
Council of Nicaea ' (in a.d. 325) that priests could be 
judged by God, but not by men. The clergy wanted to 
be tried by their peers, and looked askance at the other 
Courts ; the times were given over to violence, the pun- 
ishments were always sanguinary, and the lay lords and 
judges were exceedingly rapacious. ° If there were no 
more open pagans in high places, there came along various 
heretics certain to be abhorred at least equally. 

So the Church started on a long contention, in which 
there were many struggles, with local victories and 
defeats in different countries. In the earlier period the 
State was the stronger ; a law of Gratian ' (fourth century) 
reserved to the Secular Court all but the slight offences 
of the clergy. It was laid down at the Council of Agde 
in 506,' and again at the Council of Epaone in 517," that 
while the clergy should not appeal to the civil power as 
plaintiffs," they were to attend if summoned to the Secular 
Courts. At a Council of Macon in 581 " it is implied that 
criminal cases were to be conceded to them. At the same 

1 Some years later Archbishop Boniface, in his Constitutions, de- 
clared (17) that the State must not interfere with moral inquisitions. 
Vide J. Johnson, Laws and Canons, ii. p. 205, ed. 1851 ; and observe 
" Note on Anselm's Canons," p. 28 of the same volume. 

2 The visitations of the archdeacons were highly unpopular, creating 
any number of spies and informers ; see Ecclesiastical Courts Commis- 
sion, p. xxiv. London, 1883. 

3 I Cor. vi. 3. 

• Ibid. 2. 

° Rufinus, Hist. Ecc. lib. i. cap. ii. p. 184, ed. of Basel. 1611. 

° On the packing and intimidating of juries until, as Wolsey ob- 
served, "they would find Abel guilty for the murder of Cain," see 
W. Eden (Lord Auckland), Principles of Penal Law, p. 176. London, 
1771. 

^ H. C. Lea, Studies in Church History, p. 171. Philadelphia, 1869. 

• C. Agathense, c. 32. 

• C. Epaonense, c. 11. 

" The same weis also referred to by thfe eighteenth Canon of the 
Council of Vemeuil about 755. 
** C. Matisconense, i. c. 7. 



PENAL METHODS OF MIDDLE AGES 33 

time the clergy were forbidden to accuse one another 
before civil magistrates.' 

The fear and jealousy of the Secular Courts persisted ; 
by a Canon of the Third Council of Orleans (a.d. 538),' 
the bishop's permission was to be given before a cleric 
could attend as plaintiff or defendant. By the fourth 
Canon of the Fifth Council of Paris (a.d. 615),' no judge 
was to try any ecclesiastic without first giving notice 
to his ordinary ; this order is repeated in a Capitulary 
of Charlemagne of a.d. 769. Pope Gregory the Great 
(540-604) * had contended for the principle that a clerical 
defendant was entitled to be tried by his own Court, 
and this was established by Welsh Canons of the seventh 
century. ' 

A Capitulary of Charlemagne gave the bishops criminal 
jurisdiction over the clergy, ' though the emperor reserved 
to himself the right of final decision in all cases.' By 
the year 853 his grandson, the superstitious Charles the 
Bald, was appealing to the bishops at Soissons against 
the person of a humble clerk who was accused of forging 
the royal signature." In a.d. 866 ' Pope Nicholas I., in 
his advice to the Bulgarians, declared that laymen had 
no right to scrutinize or condemn any priests, who were 
to be left to the control of their prelates. The Council 
of Ravenna in 877 " ordered that none who were under 
the bishops' guardianship should be seized by the secidars. 

The two systems drifted farther and farther apart ; " 
clerks were forbidden under pains and penalties to attend 
secular summonses. The Emperor Frederic II." decreed 
in 1220 that no one might drag a clerk before a secular 

* C. Matisconense, i. c. 8. 
2 C. Aurelian, iii. c. 32. 

2 C. Parisiense, v. c. 4. 

* Gregor. I. lib. vi. Epis. xi. 

5 Haddan and Stubbs, Councils and Ecclesiastical Documents, i. 
p. 133. Canones Wallici, c. 40 (37). Oxford, 1869. 

" Lea, Studies p. 178. 

^ Ibid. p. 179. 

» Ibid. p. 182. 

' Epis. xcvii. 70. Migiie, Patrologiae, torn. 119, p. 1006. 

1° C. Ravennense, c. 4. ^ 1 -a 

»» For instance, by Charlemagne in 789 and at the Synod of Bam- 
berg A.D. 1491 ; vide Lea, Studies, pp. 178, 192, 196. 

" Privilegia Clericorum. Constitutio Frederici Imperatoris, p. m. 
B. M. Cat. i. a. 6515, Constitutio Caroli, 1498. 

8 



34 A HISTORY OF PENAL METHODS 

tribunal ; any lay judge who convicted one was to forfeit 
his place, besides incurring spiritual penalties.^ The 
Emperor Charles IV. made similar laws in 1359 {Constit. 
Caroli IV. 5), and punished the imprisonment of a clerk 
with outlawry and loss of possessions.^ This was con- 
firmed by Pope Martin V. in 1418. The right to clerical 
immunity' was reasserted at the twenty-fifth session 
(20) of the General Council of Trent in 1563-' 

The Church, as we have already seen, had been allowed 
and appointed to regulate the faith and morals of all men. 
It also claimed, and, in the long-run, secured, the right 
to demand all clerics accused of crimes, ° except in cases 
of high treason, highway marauding,' and deliberate 
house burning,' offences against the laws of the forest 
(that is hunting the king's deer, etc.),' and misdemeanours. 
{i.e. slight offences).* In time all clerks claimed privilege 
of clergy, and these consisted not only of those in priests' 
orders ^^ (of minor orders there were four degrees below 
subdeacons "), but of all those who were tonsured and 
had their hair cut in the clerical fashion.'* 

All anywise connected with Church work, such as the 
readers, acolytes, and door-keepers, could claim clergy." 
So that the state of clerkship was frequently claimed," 
both justly and fraudulently, by extremely humble people, 
and the existence of the tonsure, and also its genuineness, 
were very important in criminal cases, for it was some- 
times assumed as a claim to immunity," and occasionally 

* G. H. Pertz, Monumenta Germaniae Legum, torn. ii. p. 244. Han- 
over, 1837. 

Lea, Studies, pp. 191, 196. 
^ Ibid. pp. 191, 192. 

^ P. F. Lecourayer, Histoire du Concile de Trente, torn. ii. p. 658 ; 
and see p. 585, etc. 1736. 

* For post-Tridentine claims, vide Lea, Studies, p. 216, etc. 
^ Holdsworth, Hist. Eng. Law, iii. p. 253. 

* Even insidiatores viarum et depopulatores agrorum were ultimately 
allowed clergy by 4 Hen. IV. c. 2, a.d. 1402. 

' Matthew Hale, Pleas of the Crown, ii. p. 333. London, 1800. 

8 Lingard, Hist. ii. p. 192, etc. 

' Holdsworth, i. p. 382. 

1" Lea, Studies, pp. 213, 218. 

'1 Lingard, ii. p. 127. 

" D. Rock, The Church of our Fathers, i. p. 144. London, 1903. 

1' J. F. Stephen, Hist. Crim. Law, i. p. 461. 

1* A. S. Green, Henry II., p. 85, London, 1903. 

lo Lea, Studies, pp. 178, 203. 



PENAL METHODS OF MIDDLE AGES 35 

the accused would have their heads shaved by the prose- 
cutors in order to obliterate it.' 

By the statute Pro Clero of 1350/ " all manner of 
clerks, as well secular as religious, which shall be from 
henceforth convicted before the secular justices aforesaid 
for any treasons or felonies touching other persons than 
the King himself or his royal majesty, shall from hence- 
forth freely have and enjoy the privilege of Holy Church, 
and shall be, without any impeachment or delay, delivered 
to the ordinaries demanding them." This came to mean 
immunity for all who could read.' 

A man who claimed clergy was examined as to his 
scholarship, being required to read a passage,* usually 
from the 51st Psalm, which was called his " neck verse." ° 
Then said the lay Court to the bishop's representative, 
" Legit ut clericus ? "; and the examiner replied, " Legit," 
or ' ' Non legit " ; ' and the person would either be re- 
mitted to the ordinary or sentenced by the judge, although 
it was forbidden to teach an accused person his letters ' 
while he awaited trial (and he might have to lie five or 
six years in the bishop's prison until he could be pre- 
sented at the assizes — Pollock and Maitland, Hist. Eng. 
Law, p. 442) ; yet foreigners might read from books in 
their own language,' and the blind could claim clerkship 
if they could speak in the Latin tongue. 

Clearly, to be tried by the Ecclesiastical Courts was 
looked upon as being a privilege and an advantage by 
the person accused.* He had every chance of acquitting 
himself " by means of the Canonical Purgation (see Com- 
purgation, ante) ; " and even if he happened to be con- 
demned by bishop" or abbot, in case he failed to obtain 

1 Johnson, Laws and Canons, ii. p. 194. 

2 25 Ed. III. c. 4. 

3 Stephen, Hist. Crim. Law, i. p. 461. 

* Meiklejohn, Hist. Eng. vol. i. p. 165. London, 1895. 
5 Lord Auckland, Principles, p. 173. 

• Thomas Smith, De Republica Anglorum, Alston's ed. p. 103. Cam- 
bridge, 1906. 

' D. Barrington, Observations on the More Ancient Statutes, p. 443. 

" Hale, Pleas of the Crown, ii. p. 372. 

» Stephen, Hist. Crim. Law, i. p. 460. 

1" Pollock and Maitland, Hist. Eng. Law, i. p. 426. 

11 W. Stanford, Flees de Coron., lib. ii. cap. 48. London, 1560, 

" Holdsworth, Hist. Eng. Law, i. p. 382. 



36 A HISTORY or PENAL METHODS 

the necessary compurgators, or were delivered over abs- 
que furgatione {i.e. not allowed to make his purgation)/ 
or even if, from religious fears, he refused to swear inno- 
cence," the ecclesiastical punishments were generally 
merciful, except for such deadly sins as heresy or witch- 
craft. 

The clergy were forbidden by the Canons to impose 
sentences of death or mutilation ; ' the injunction was 
repeated by Archbishop Ecgberht.* "We threaten 
anathema," wrote Archbishop Richard in the year 1175," 
" to that priest who takes the office of sheriff or reeve." 
Again in 1215 were the clergy forbidden the judgment 
of blood.' They were not, said a Council of Toledo,' to 
sit as judges, even at the command of a ruler, in cases 
of treason, unless he first promised to remit the red 
penalties. At the Council of Auxerre ' the clergy were 
prohibited from witnessing the usual torturing of the 
prisoners, or from lingering round the trepalium when 
it was in progress. In fact, except for acts or thoughts 
which it considered to be high crimes against the soul, the 
Church was milder than the mediaeval State. 

The Church, being debarred from the employment 
of the swift and sanguinary penalties of those times, had 
to resort to other methods of disapproval, and it evolved 
the penitential discipline. At first it wielded only 
spiritual weapons — none the less terrible in those days 
because they were ghostly — and by refusing access to 
Church or Communion, and thereby (as all concerned 
fully believed) closing on kings the everlasting doors, it 
sometimes brought the mightiest to their knees to implore 
pardon from the priests of God.' On confessing a crime, 
or upon being condemned, all manner of tasks and toils 

' Stephen, Hist. Crim. Law, i. p. 461. 

2 See Bingham, Antiquities of the Christian Church, v. p. 459. 

^ Concilium Tarragonense, c. 4, a.d. 516. 

C. Autissiodorense, c. 34, a.d. 578. 

C. Toletanum, xi. c. 6, a.d. 675. 
* Excerptiones Ecgberii, Arch. Ebor. 156. 
E Johnson, Laws and Canons, ii. p. 60, 
C. Lat. iv. c. 18. 
' C. Toletanum, iv. c. 31, a.d. 633. 
8 C. Autissiodorense, c. 33, a.d. 578. 

» As, for instance, Theodosiiis, fourth century ; Emperor Henry IV,, 
eleventii century ; King Henry II,, twelfth century. 



PENAL METHODS OF MIDDLE AGES 37 

were laid upon the penitent. Sometimes they were 
capricious and poetic ; thus if a man had slain his near 
kindred,^ the weapon with which the deed was committed 
could then be forged into a penal chain, and, bound there- 
with, arrayed in the sclavinia,' or, it might be, naked, he 
would have to trudge away, staff in hand, to his desti- 
nation, which might be some local shrine, or that of 
St. Thomas of Canterbury ; but which might be far off, 
across and beyond the seas, to Compostella, Rome, or 
Palestine." The ordinary penitent wore no chains, but 
he was usually required to go unarmed, to eat no flesh, to 
take no strong drink, and to abstain from warm baths, 
and sometimes he had to fulfil weird and painful conditions 
particularly imposed by his penitentiary ; * as, for in- 
stance, when Robert, called the Devil, was ordered by a 
certain hermit ^ to eat only bones and scraps which had 
been thrown to dogs, and to be dumb and act like one 
insane. Our own King Edgar ' was condemned not to 
wear his crown for seven years. Examples could be 
multiplied indefinitely. A much-employed form of cor- 
rection consisted in imposing penitential fasts,' during 
which the offender was to subsist upon bread and water,' 
and was subject to many disabilities and restrictions." 
These sentences might be for any period ranging from a 
single day to twenty years, and even longer, and all the 
whUe the penitent was supposed to drag out his existence 
in shame and disgrace, making prayers for deliverance." 

' Thrupp, Anglo-Saxon Home, p. 238. 

2 Ibid. p. 243. 

3 King ^thelwulf, in the ninth century, obtained an ordinance 
from the Pope that no Englishman was to be condemned to make a 
pilgrimage in irons outside his own country. — Lappenburg, Saxon 
Kings, ii. 26. A pilgrim from Canterbury would be recognized by 
his carrying back a bottle or a bell ; a shell if he had arrived from 
Santiago de Compostella (Spain), and a palm from the Eastern Land. 
— R. F. Littledale, Ency. Brit. 

* Thrupp, Anglo-Saxon Home, p. 356. 

» See W. J. Thorns, Early English Prose Romances, i. p. 31, etc. 
London, 1858. 

^ Johnson, Laws and Canons, ii. p. 449. 

T So much would depend upon the view taken by the penitentiary. 
See, for instance, Charles Reade's historical story. The Cloister and the 
Hearth. 

« Usually for half the time, and often for three days in a week for 
the second half. Vide Pen. Ecgberti, Arch. Ebor. etc. 

• Lea, Studies in Church History, p. 245. 
»" Thorpe, fol. ed. pp 280, 315. 



38 A HISTORY OF PENAL METHODS 

The Church allowed class distinctions in several ways ; ' 
offences might be punished according to the rank of the 
aggrieved party, so that the penance for the murder of a 
bishop was for twelve or fourteen years, or longer, upon 
bread and water, while the slaying of a deacon could be 
atoned for by seven or ten years', and of a layman by 
four, five, or seven years' discipline. 

On the other hand, people, and especially the clergy, 
were liable to be sentenced more severely in proportion 
to their rank.' Thus, for homicide, where a layman 
would get four or five years' penance from the ordinary,' 
a clerk would receive six years, a priest ten, and a bishop 
as much as twelve years (seven on bread and water).' 
These long-enduring penances sound severe, and doubt- 
less were for devout believers. But the Roman Church, 
always a marvel of organization, allowed its bishops 
very great latitude, both in imposing and removing 
penances. " I require not the continuance of time," 
said Chrysostom, " but the correction of the soul ; demon- 
strate your contrition, demonstrate your reformation, 
and all is done." By the authority of the Councils' 
they could increase or mitigate sentences, ° so that the 
infirm and the over-sensitive might have their tasks 
modified.' 

1 See the Penitential of Archbishop Theodore of Canterbury (A.D. 
673), Thorpe, p. 278. 

In the year 11 39 a. Council of Lateran condemned murderers of 
the clergy of excommunication, removable by the Pope alone (Labbe, 
tom. xxi. p. 530). Nevertheless we find Archbishop Richard com- 
plaining of want of protection (Petrus Blesensis, Opera, Epistola 73, 
Giles's ed. i. p. 217, Oxford, 1847 ; also Hook, Lives of the Archbishops 
of Canterbury, ii. p. 577, London, 1862) ; and Henry II. provided lay 
penalties (Reeves, Hist. Eng. Law, i. p. 133 ; Lingard, Hist. ii. p. 193 ," 
Carte, Hist. i. p. 689 ; C. H. Pearson, History of England during the 
Early and Middle Ages, p. 511. London, 1867). 

2 Vide Penitential of Theodore, De Temperantia Poenitentium, etc. 

3 Penitential of Ecgberht, Archbishop of York (eighth century), 
Thorpe, p. 377. 

" The common penance for murder " (ninth century) was seven to 
ten years. 

* J. Johnson, Laws and Canons, note E, ii. p. 11. 
^ C. Ancyranum, c. 5, a.d. 314. 
C. Nicaeni, c. 12, a.d, 325. 
C Chalcedonense, c. 16, a.d. 451. 
C. Ilerdense, c. 5, a.d. 524. 
« For England, see Thorpe, i. p. 278 ; Johnson, Laws and Canons, 
ii. pp. 10, II, note D. 
^ Johnson, p. 446. 



PENAL METHODS OF MIDDLE AGES 39 

But they dealt gently with the men of might ; ' the 
wind was tempered to the woolly lamb." In spite of 
Cuthbert's Canons at Cloves-Hoo in the eighth century,' 
the rich were generally enabled to perform their pilgrim- 
ages vicariously (whereby there had arisen a class of 
professional pilgrims ; Thrupp, p. 239, etc.), and to atone 
for sins by almsgiving and payment.* " Thou hast 
money, buy off thy sin," Ambrose had written in the 
fourth century.* " The Lord is not for sale, but thou 
thyself art for sale. Restore thee by thy works. Buy 
thyself back by thy money." 

This exhortation was followed and given the lowest 
possible interpretation in the Canons made (by Dunstan, 
probably) in the reign of King Edgar in the year 963.° 
When a great man had been condemned to fast, say seven 
years, he was to lay aside his weapons, and take his staff 
in his hand and walk barefoot, clad in wool or haircloth, 
and he was not to go to bed or banquet for three days. 

He was to take to his assistance twelve men, and 
they were to fast three days on bread, raw herbs, and 
water : thus thirty-six fasts were kept. He was to get 
together seven times 120 men and set them to fast three 
days ; thus he secured 7 x 120 x 3 + 36 fasts, or 2,556 
which meant as many fasts as there were days in seven 
years, counting a leap year ! And thus his penance was 
done, or rather evaded.' 

But the Church did not usually allow its penalties to 
be disregarded ; against heretics there were, even in 
England, severe statutes,' and they would be seized by 

1 Marshall, Penitential Discipline, pp. 109, no. 

2 The king's familiar friends and associates were to be received 
into the communion of the Church and were not to be cast out, decreed 
a Council of Toledo. — C. Toletanum, xii. c. 3, a.d. 681 ; Labb6, tom. xi. 
p. 1030 ; Marshall, Penitential Discipline, p. 126. 

^ C. Clovenhonense, cc. 26, 27, a.d. 747. 

♦ Maitland, Domesday Booh. p. 281. 

" St. Ambrose, De Elia et Jejunio, c. xx. ; Migne, Patrologiae, tom. 
xiv. p. 724. 

' See J. Johnson and B. Thorpe ; also Lea, Middle Ages, i. pp. 464, 
473. 

' Carte, Hist. i. p. 581. I think it was Herbert Spencer who re- 
marked how completely mere outward material performance or con- 
formity could generally satisfy the mediaeval claims. 

• 5 Rich. 11. c. 5, A.D. 1382. 
2 Hen. IV. c. 15, a.d. 1400. 
2 Hen. V. c. 7, a.d. 1414. 



40 A HISTORY OF PENAL METHODS 

the civil forces and burned alive. Any one who had 
offended against the Canons, and who refused to do pen- 
ance, could be excommunicated, and then he became 
liable to arrest.^ In this country if the offender ignored 
it for forty days,^ the King's Court, on the request of the 
bishop,' issued a Writ of Significavit, * or some similar 
injunction, ordering the sheriff to imprison him until he 
had satisfied the claims of the Church.'' 

The hierarchy, although, as we have seen, debarred 
from directly inflicting such penalties as death or amputa- 
tion of members, resorted to many forms of corporal 
punishment. Floggings for penance or discipline were 
administered frequently ; ° the younger monks in the 
monasteries commonly received thirty-nine stripes.' 

But the bishops had other and worse penalties in 
reserve, and, unlike the secular rulers, they employed 
imprisonment as a means of punishment in itself. The 
Catholic Church, with its ideals of cloistral life and ascetic 
seclusion, sought to produce remorse through mental 
affliction, and in its high-walled abbeys and gloomy 
courts had buildings ready to immure any one. The first 
cells were among the exedrae round churches and bishops' 
houses and were called the decanica,' while refractory 

1 C. Triburiense, c. 3, a.d. 895. 
Lea, Studies, p. 384. 

Stubbs, in Appendix II. Ecc. Courts Comm., 1883, pp. 55, 56. 

2 He might even be proceeded against on suspicion of heresy if he 
continued contumelious. See twenty-fifth session of the Council of 
Trent, Lecourayer, torn. ii. pp. 648, 653. 

3 Stubbs, Const. Hist. iii. p. 374. 

* Chaucer, John Saunders's ed. p. 83. London, 1889. 

" Significavit is a Writ which issues out of the Chancery upon a 
Certificate given by the Ordinary of a man that stands obstinately 
excommunicate by the space of forty days, for the laying him up in 
prison without Bail or Mainprice, until he submit himself to the 
Authority of the Church." " And it is so called because Significavit 
is an emphatical word in the Writ." — T. Blount, Law Dictionary. 
London, 1717. 

5 See A. Abram, Social England in the Fifteenth Century, p. Ill 
(London, 1909) ; also Chancery Warrants for Issue, The Patent Rolls, 
etc. ; J. Johnson, Laws and Canons, ii, p. 192, De Excommunicato 
Capiendo, and p. 399 ; Holdsworth, Hist. i. pp. 358, 433. 

« Henry II. of England was severely scourged by eighty ecclesiastics ; 
the bishops present gave each five strokes, and every monk gave three. 
The king's penance brought on illness. — Lea, Middle Ages, p. 464 ; 
Meiklejohn, Hist. i. p. I02. 

' Bingham, Antiquities of the Christian Church, vi. p. 172. 

• Ibid. ii. p. 128. I once saw a cell belonging to a Spanish prelate 
at Majorca ; it was a little dark lock-up and was untenanted. 



PENAL METHODS OF MIDDLE AGES 41 

monks were freely imprisoned in the great monasteries.* 
Though the ecclesiastical punishments ' were accounted 
generally merciful — as we shall see presently from English 
comments on them — they could be pitiless enough on 
occasions, especially against heretics. The secret and 
dreadful Inquisition had its own prisons,' in which it 
tortured its victims by every means that subtlety could 
suggest, and in which the mind-wrecking results of 
solitary confinement were probably first discovered, and 
at any rate utUized. 

Already back in the thirteenth century the authorities 
had frowned on prison association.* In 1229 a Council 
of Toulouse ordered that the " converted" heretics (i.e. 
those who had recanted from the fear of execution, and 
who were even then sentenced to imprisonment for life ; 
vide Lea, on Laws of Frederic II., Bull of Gregory IX., 
etc., in his Middle Ages, i. pp. 321, 484) should be kept 
from corrupting others. The new prisons built for the 
Church and the Inquisition ' were ordered to have small 
dark dimgeons for solitary confinement. In 1246 a 
Council of Beziers' ordered that the captives should be 
kept separate in secret cells, so that no one might corrupt 
another. It speaks of the " enormis rigor carceris." 

The prisoners of the Church ' were subjected to various 
kinds of incarceration. There was the Murus Largus, 
under which they were allowed about the place ; ' the 
Murus Strictus, Durus, or Arcius, by which they were 

' For instance, Tinmouth Priory was employed as a prison by the 
abbots of St. Albans. See W. Dugdale, Monastimm AngHcanum, 
iii, p. 309. London, 1846. 

Bingham, vii. p. 43. 

Ingulph's Chronicle of the Abbey of Croyland. Riley's ed. p. 98. 

' Lea, Middle Ages, i. p. 488. 

' Ibid. p. 290. 

Charles Molinier, V Inquisition au XIII' et au XIV' siicle, pp. 435. 
440, etc. Paris, 1880. 

Concilium Albiense, c. 24, a.d. 1254. 

Lea, Superstition and Force, p. 426. 

Findings of the Commission of Cardinals sent by Pope Clement V. 
in 1306; see Molinier, p. 450, and B. Haurdau, Bernard Delicieux, 
p. 134, etc. Paris, 1877. 

• C. Tolosani, c. 11. 

" Lea, Middle Ages, i. p. 491. 

• C. Biterrense, c. 23, et C. Biterrense, A.D. 1233; Be Custodia 
Claustria, Labbe, tom. xxiii. p. 275. 

' Lea, Middle Ages, i. p. 487. 

• Ibid. p. 486. 



42 A HISTORY OF PENAL METHODS 

supposed to be confined in separate cells upon bread and 
water ; » and the Mums Strictissimus, where they were 
kept in dungeons and in heavy irons.' The Inquisition 
employed, besides, innumerable torments, and could 
learn Uttle from the imaginings of Dante; but that 
dread organisation has a history of its own. 

Apart from it, the bishops ' possessed their prisons, and 
the great convents had penal cells,* and these they would 
use to inflict penance or punishment. ° Thus at Canossa, in 
1077, Pope Gregory VII.' consigned the rebellious German 
prelates to solitary ceUs with bread-and-water dietary. 

Again we may read of another example occurring in 
the year 1283. A certain Brother John had, it appears, 
bitten his prior's finger " like a dog," it was said ; and 
for this we find the bishop ordering the outraged prior ' 
" to keep the said Brother John in prison under iron 
chains, in which he shall be content with bread, indifferent 
ale, pottage, and a pittance of meat or fish (which on the 
sixth day he shall do without) until he is penitent." A 
worse fate befeU Alexander de Langley in the same 
century.' This unfortunate creature was a man of great 
culture and was the keeper of the abbot's seal. Either 
from approaching general paralysis, or from some other 
form of insanity, he passed into a state of extreme exalta- 
tion, perhaps to the extent of being, as they would take 

' In 1234 a Council of Albi decreed that the holders of confiscated 
property of heretics should make provision for the imprisonment and 
maintenance of its former owners. 

2 For instance, in a.d. 1300 we find certain prisoners at Albi con- 
demned ' ' Ad perpetuum carcerem stricti muri ubi panis doloris in 
cibum et aqua tribulationis in potum, in vinculis et cathenis ferreis 
solummodo ministrentur." — Molmier, p. 94, quoting Doat, tom. xxxv. 

3 ' ' We do with special injunction ordain that every bishop have 
one or two prisons in his bishopric ; he is to take care of the sufficient 
largeness and security thereof for the safe keeping of clerks according 
to canonical customs that are flagitious, that is, caught in a crime 
or convicted thereof. And if any clerk be so incorrigibly wicked that 
he must have suffered capital punishment if he had been a layman, we 
adjure such an one to perpetual imprisonment. . . ." — J. Johnson, 
ii. pp. 207, 208 ; Constitutions of Archbishop Boniface, a.d. 1261. 

• Dugdale, Monasticum Anglicanutn, vi. p. 238. 
5 Lea, Middle Ages, p. 487. 

• James Stephen, Studies in Ecclesiastical Biography, p. 38. London 
1907. 

' J. W. Willis Bund, Episcopal Registers, ii. p. 182. Oxford, 1902. 

• H. T. Riley, Gesta Abbatum Monasterii Sancti Albani, i. p. 266. 
London, 1867. 



PENAL METHODS OF MIDDLE AGES 43 

it, mutinous or blasphemous. A severe flogging having 
failed to restore his sense of proportion, he was consigned 
in fetters to a cell in which he ultimately died, and was 
buried, the corpse still chained. 

There had also existed within the monasteries the 
dreadful punishment of solitary confinement known as 
In Pace. " Those subjected to it," says Dr. Lea,^ " died 
in all the agonies of despair. In 1350 the Archbishop of 
Toulouse appealed to King John to interfere for its miti- 
gation, and he issued an ordinance that the superior of 
the convent should, twice a month, visit and console 
the prisoners, who, moreover, should have the right, 
twice a month, to ask for the company of one of the 
monks. Even this slender innovation incurred the 
bitterest resistance of the Dominicans and Franciscans, 
who appealed to Pope Clement VI., but in vain." 

There could indeed be abuses and cruelties in ecclesi- 
astical prisons, as there always are where high walls 
conceal. For instance, we may read ' that in a.d. 1283 
certain monks were seized by the Abbot of Westminster, 
" and so greatly beaten that one of them has miserably 
expired." There were cases where the Church took the 
extreme step of degrading from orders. In the very 
early period this often meant that degraded clerics would 
be immediately claimed by the secular authorities and 
set servile tasks ' — after which they could not be rein- 
stated. Very often they were shut up in the monasteries, * 
a course which the bishops preferred to remitting them 
to lay punishment.'' Innocent III. (1198-1216), how- 
ever, directed that clergy who had been degraded should 
then be handed over to the secular powers.' 

But in actual practice clerks were not often totally 
degraded.' To be deprived of orders was looked upon as 

1 History of the Inquisition in the Middle Ages, i. 487 and note ; and 
see H. R. Luard, Annates Monastici, t. ii. p. 296, t. iii. p. 76 ; F. W. 
Maitland, Law Quarterly Review, ii. p. 1 59. 

3 Bund, Epis. Registers of the Diocese of Worcester, ii. p. 189. 

' Bingham, Antiquities of the Christian Church, vii. p. 18. 

* Ibid. p. 12. 

^ Addis and Arnold, Cath. Diet. p. 276. 

« S. Luzio, Cath. Ency. iv. p. 678. New York, 1908. 

' Coulton, Chaucer and his England, p. 288. 

l^ea., Studies in Church History, -p. lig. 

" Degradation was a penalty rarely inflicted, since the Church 



44 A HISTORY OF PENAL METHODS 

a terrible punishment ; ^ it was the final casting from 
the fold and was inflicted with great difficulty.' Three 
bishops were required to degrade even a deacon ; six were 
necessary to unfrock a priest ; and it took twelve pre- 
lates to adjudicate upon a bishop.' 

When any were degraded, excommunicated, and sent 
to the seculars, the sanguinary lay penalties took their 
course. ' The chief offence for which the Church withdrew 
all protection was obstinate or repeated heresy. In the 
earlier period those found guilty were branded on the 
forehead ' and cast out " (as once from Oxford, to die 
of cold and starvation) excommunicate, or they might 
be imprisoned and have their property confiscated.' But 
with the rise and multiplication of militant sectaries, the 
Church m-ged the State to proceed to extremities. 

Heretics were ruthlessly burned alive by popular 
custom' (and were sometimes "lynched" like negro 

was reluctant to admit that the sacred oflSce once conferred could be 
taken away for any offence short of heresy." — Davis, Normans and 
Angevins, p. 207. See also W. Fanning in Catholic Ency., art. " Prisons," 
vol. xii. 

• Degraded clerks were forbidden to live in the world as laymen 
by a Council of Rouen. — C. Rothomagense, c. 12, a.d. 1074. 

Those who threw off their habit were not to be admitted into the 
army or into any convent of clerks, but were to be esteemed excom- 
municate. — Lanfranc's Canons, c. 12, a.d. 1071 ; J. J. ii. 9. 

* Lecourayer, Concile du Trente, torn. i. p. 543. 

' Stubbs, Ecc. Courts Comm., 1883, Appendix ii. p. 57. 

* A lay officer was supposed to be present to take over the fallen 
cleric into his custody. — Oath. Ency. iv. p, 678. 

' C. Remense, a.d. 1157. 

' C. Oxonietue, a.d. 1166. 

' C. Turonense, a.d. 1163. 

• Lea, Hist. Inq. Middle Agts, i. p. 222. 

A deacon was burned at Oxford in 1222, having been tried before 
Archbishop Langton for embracing Judaism in order to marry a Jewess.* 
From that time until 1400 no one is said to have been burned to death 
for heresy in England. — Maitland, Law Quarterly Review, ii. p. 153. 
London, 1886. 

• Fiofessor E. P. Svans throws an Interesting sideliglit on this offence. " It seemi 
rather odd," he observes, " that the Christian lawgivers should have adopted the Jewish 
code against sexual intercourse with beasts, and tken enlarged it so as to include the 
Jews themselves. The question was gravely discussed by jurists whether cohabitation 
of a Christian with a Jewess, or vice versa, constitutes sodomy. Damhouder {Prax. rsv. 
crim, c. 96, n. 48) is of the opinion that it does, and Nicolaus Boer {Decis, 136, n. 5) cites 
the case of a certain Johannes Alardus or Jean Alard who kept a Jewess in his house 
in Paris and had several children by her ; he was convicted of sodomy on account 
of this relation and burned, together with his paramour, ' since coition with a Jewess is 
precisely the same as if a man should copulate with a dog ' {Dopl. Tluat. ii. p. 157). 
Damhouder includes Turks and Saracens in the same category." — The Crimmtl Pro- 
secution and Capital Ptmisliment ol Animals, p. isi. I,ondon, 1906. Cf. William Bden, 
I,ord Auckland : Principles at Penal tam, p. 93. 



PENAL METHODS OF MIDDLE AGES 45 

criminals in the United States [vide Lea, Middle Ages, i. 
pp. 219, 222, 308,]) and in time this became formally 
recognized.' Pedro of Aragon in 11 97, the Emperor 
Frederick II. by the Edict of Cremona in 1238, Louis IX. 
of France by his ^tablissements in 1270, and Henry IV.' 
of England in 1400, made burning at the stake the legiti- 
mate punishment of persistent or relapsed heretics.' 

But it was not the severities of the Church that kept 
arousing the jealousy and opposition of the secular power. 
It was the immunity it afforded to those under its pro- 
tection * which moved the State to attack clerical privi- 
leges, and, in the course of ages, to remove them entirely. 
In Saxon times lay and episcopal authorities acted closely 
together, but William of Normandy, doubtless continuing 
the Continental movement already alluded to, separated 
the ecclesiastical from the secular courts. 

King Henry II. had succeeded to the throne after a 
period of civil war and devastating brigandage, in which 
the Church had fortified its position and extended its 
jurisdiction,' and was bent upon reasserting the power of 
the central government. He found that the clergy and 
the clerks ' were outside his control, and in the middle 
ages they were a numerous body,' as many people were 
received into orders who had little or nothing to do in 
their own profession, and who were debarred by rule from 
obtaining a livelihood otherwise.' So the king employed 
all his efforts to place the clerks under his justices. 

A crucial case arose in 11 63. A certain Philip de 

1 Lea, Middle Ages, i. pp. 2Zo, 221, etc. 

2 2 Hen. IV. c. 15. 

=• A pious old lady left a bequest to the city of London to defray 
the expenses of incinerating misbelievers. — Meiklejohn, Hisi. i. 223. 

♦ W. Stubbs, Charters, p. 136. 

' G. B. Adams, Political History, p. 279. London, 1905. 

• It was represented to him that in the nine years through which 
he had reigned innumerable offences and one hundred murders had 
been committed by clerks, who had escaped all punishments save the 
light sentences of fine and imprisonment inflicted by their own courts. 
— W. R. W. Stephens, The English Church, p. 165. London, 1901. 
William of Newburgh, lib. ii. p. 130, H. C. Hamilton's ed. London, 
1856. 

' In the thirteenth century there were, for instance, twelve clerks 
in the village of Rougham. — Augustus Jessopp, Coming of the Friars, 
p. 84. London, 1889. See also J. E. Thorold Rogers, Six Centuries 
of Worh and Wages, i. pp. 24, 160, 161. 

' Carte, Hist, i. p. 381. 



46 A HISTORY OF PENAL METHODS 

Broi or de Brois/ who was probably an Archdeacon of 
Bedford and a Canon of Lincoln, had previously escaped 
personal punishment on a charge of manslaughter, but 
was afterwards denounced as a murderer by Simon 
FitzPeter, who was one of the king's justices. On this 
he protested vehemently and abused the judge. There 
had been several other cases about that time, including a 
bad one of murder and rape by a cleric from Worcester," 
and another of homicide out of Salisbury,' in which the 
offender escaped with imprisonment, and King Henry 
took action with great fury.* He claimed to have been 
insulted in the person of his delegate, and ordered that 
de Broi should be brought to trial, not only for this, but 
for the original manslaughter ; he wished, in fact, to 
send him to the gallows. The archbishop refused to 
reopen the matter already tried and decided: but for 
having insulted the king's officer the rebellious priest was 
severely dealt with," as he was stripped and flogged 
before the angry judge, and lost his office and stipend 
on being banished for two years.' The king was dis- 
satisfied, desiring nothing less than the death of the 
canon, and vigorously proceeded towards the subjugation 
of the clergy. 

In 1 1 64 he promulgated the Constitutions of Clarendon, 
by which he desired that criminous clerks should incur 
the lay penalties. The offender was first to be accused 
in the temporal court ; ' then tried, convicted, and de- 
graded by the ecclesiastical tribunal ; thence sent back 
for sentence to the secular court, to receive the customary 
draconic punishments. But Archbishop Becket and the 
English hierarchy declared that to degrade a clerk and 
then remit him to the secular judges was to punish him 

1 Eirikr Magnusson, Thomas' Saga Erlfihyshup, i. p. 144, note. 

2 William FitzStephen ; J. C. Robertson's Materials for the History 
of Thomas Becket, iii. p. 45. London, 1881. 

David Hume, Hist. Eng. i. p. 391. London, 1818, 

3 See Herbertus de Boseham ; Robertson, Materials, iii. pp. 264, 265. 
* Magnusson, Thomas' Saga Erhibyskup, i. p. 145. 

s William of Canterbury; Robertson's Materials, i. pp. 12, 13. 
Edward Grim ; Robertson, ii. p. 375. 
Anonymous ; Robertson, iv. p. 24. 

K. Norgate, England under the Angevin Kings, ii. p. 21. London, 
1887. 
« R. de Diceto, Works, Stubbs's ed. i. p. 313. London, 1876. 
' F. W. Maitland, Eng, Hist. Rev. vii. p. 226. London, 1892. 



PENAL METHODS OF MIDDLE AGES 47 

twice for the same offence.' " Affliction," they said, 
quoting a Hebrew prophet,' " shall not rise up a second 
time." All they would concede was that if a clerk after 
being degraded ' committed the offence again he might be 
handed over as an ordinary layman.* 

The death of Archbishop Thomas stayed all Henry's 
plans as regards the Church. " The temporal courts 
maintained their claim to bring the criminous clerk before 
them ; they abandoned their claim to punish the degraded 
clerk." ° In the thirteenth century it had become the 
custom that the clerk ' shotdd first be indicted and in- 
quired upon before he could claim his clergy ; ' by the 
reign of Henry VI. — 1422-1461 — ^he must first be con- 
victed ' before being passed into the hands of his bishop.' 

In 1261 Archbishop Boniface " ordered that the clerks 
in their bishops' custody for capital crimes should suffer 
perpetual imprisonment. In 1273 Edward I. expressly 
ordered that the bishops were to allow no clerks to depart 
without purgation. " In 1276 " the Bigami, i.e. the persons 
who had been twice married or those who had married 
widows " (highly respectable acts at the present time), 
were excluded from claiming clergy.'* In 1279 Archbishop 
Peckham decreed in his Constitutions : " " Let not clerks 
that are in prison for their crimes, and afterwards de- 

' Stephens, Hist. Eng. Church, p. i66. 

' Nahum, i. 9. 

' Norgate, Angevin Kings, ii. p. 23. 

• Stephens, Hist. Eng. Church, p. 166. 
' Holdsworth, Hist. i. p. 382. 

• Pollock and Maitland, Hist. i. p. 442, and note 2, ed. of 1898, 
' James Gairdner, The English Church, p. 42. London, 1902. 

• Reeves, Hist Eng. Law, iii. p. 41. 

» If a clerk were accused, the Crown got his goods till he had com- 
pleted purgation, after which they were usually returned (Hale, Pleas 
of the Crown, ii. p. 384). If, however, he was delivered over absque 
purgatione, or if he had first pleaded guilty, the king retained them, 
and had the produce of his lands for the prisoner's hfe. — A. T. Carter, 
History of English Legal Institutions, p. 255. London, 1906. 

'■" Johnson, Laws and Canons, ii. p. 208. 

" 2 Ed. r. c. 2. 

" 4 Ed. I. c. s. ^ X J 

" Following a Canon of the Council of Lyons, a.d. 1274. C. Lugd. 
c. 6. 

" For other instances of the dishke to remarriage, see Westermarck, 
Moral Ideas, ii. pp. 450, 451 ; and E. S. Hartland, Primitive Paternity, 
i. p. 134. 

i« Johnson, Laws and Canons, u. p. 267. 



48 A HISTORY OF PENAL METHODS 

livered to the Church as convicts, be easily enlarged, 
or admitted to purgation upon too slight pretence, but 
with aU solemnity of law and with such provident deliber- 
ation that it may not offend against the king's majesty 
or any that have a regard to equity." 

In 1350 there came the statute Pro Clero} Many 
persons had, it appears, been seized by the seculars. 
By this Act the Church's privileges were reaffirmed^ and 
the offending clerks were ordered to be handed over to 
the spiritual court. But for this grant the King de- 
manded that the clerical convicts should thenceforth be 
safely kept and duly punished, " so that no clerk shall 
take courage to offend for default of correction." Thus 
urged by the Crown, and perhaps fearful of other enact- 
ments, Simonlslip, Archbishop of Canterbury, endeavoured 
to make things harder for the Church's prisoners. " They 
are," he complains, " with so much backwardness and 
favour committed to gaol, and are so deliciously fed 
there, that the prison intended for a punishment for their 
crimes is turned into a refreshment and delicious solace, 
and they are pampered in their vices by ease and such 
inducements and yet make their escape out of custody as 
injurious to them. . . . And some notoriously infamous 
criminals, that are in truth wholly without excuse, are 
yet so easily admitted to their purgations, that every 
clerk thus delivered (by the secular judge) hath sure 
hopes of returning to his former evil life by one means 
or other. . . . Therefore we have thought fit thus to 
ordain concerning the imprisoned clerks • . . . (they are) 
to be closely imprisoned with all proper care and expedi- 
tion according to the quality of their persons and the 
heinousness of their crimes, that they rtiay not to the 
scandal of the Church return to their former way of life 
from an imprisonment intended for a punishment." 
Clerks guilty of bad offences are, on Wednesday, Friday, 
and Sabbath day, to have bread and water ; on the other 
days, bread and small beer; " but on the Lord's day, 
bread, beer, and pulse, for the honour and eminence of 

1 25 Ed. III. c. 4. 

* See, for instance, a law passed in 1378 (i lUc. II. c. 15) against 
arresting priests during divine service. 

* Archbishop Islip's Constitutions, a.d, 1351. Johnson, Laws and 
Canons, ii. p. 414, etc. 



PENAL METHODS OF MIDDLE AGES 49 

that day. And let nothing else be given them by way 
of alms or gratuity from their acquaintance and friends, 
or for any pretence or reason whatsoever ; nor let any 
purgation be granted them." These severe rules, which, 
coming from the archbishop,' were, of course, repeated 
by all the prelates, resembled the penal systems of dis- 
cipline which reached their maximum of cruelty in the 
nineteenth century. 

But there seems good reason to believe that the 
Church's treatment of its prisoners remained, on the 
whole, mild and humane. The clergy were not hardened 
prison officials ; their calling was spiritual rather than 
military. They were dealing with men belonging more 
or less to their own order, and were prone to class loyalty.* 

In the light of subsequent criticism and legislation,' 
it seems that even after Islip's ordinance the Church's 
convicts were much better treated than were the laymen 
in the common gaols. Moreover, either (or both) from a 
sense of hmnanity,* or because the bishops disliked having 
to pay for the keep of their prisoners," long sentences 
were avoided and life sentences were inflicted as rarely 
as possible ; the prisoners would be pardoned ' on jubilees 
and special occasions, and sometimes released on their 
friends paying ransom (apparently of such sums as £20 
or £40 ; vide Lea, Studies in Church History, p. 202, 
and the statute 23 Hen. VIII. c. i). The State all along 
appeared on the side of severity, and, from the thirteenth 

1 See, for instance, F. C. Hingeston-Randolph, Eegister of John de 
Grandisson, Bishop of Exeter, Part ii. p. 1118. London, 1897. 

> For instance, they could not be accused by disreputable persons ; 
vide C. Carthag. a.d. 390 ; Labbe, torn. iii. pp. 694, 870 ; C. Chalced. 
c. 21, A.D. 451 ; Labbe, torn. vi. p. 1229; C. Trident. Ses. 13, c. 7, 
A.D. 1551. It was complained that the clergy could not be accused 
by the laity and would not accuse each other. — Lea, Studies in Church 
History, pp. 208, 211. . 

3 For instance, Simon Fish in his Supplicacyon of Beggars, written 
about 1529, J. M. Couper's ed. p. 12. London, 1871. 

Shakespeare, writing of the fifteenth century, refers to the matter : 
. . . You know our king 
Is prisoner to the bishop here, at whose hands 
He hath good usage and great liberty. 

Third Part of King Henry VI. iv. 5. 
See also Hook, Archbishops of Canterbury, ii. p. 398. 

* J. C. Robertson, Materials, iv. p. 49 ; Epist. Nicolaus de Monte. 

' Coulton, Chaucer, p. 288. 

" Lea, Studies in Church History, p. 196. 



50 A HISTORY OF PENAL METHODS 

century, was in the habit of sending clerks to their 
bishop absque purgatione, who, in theory at least, were to 
be life prisoners. Indeed, if the ordinary should attempt 
to release such persons, he could be restrained from 
doing so by a writ out of the Chancery.^ 

So early as 1238 a Bishop of Exeter '' was in trouble 
for having sent a certain clerk to purgation. Later on 
an Abbot of St. Albans ' was accused of allowing some 
prisoners to escape ; and there are doubtless other in- 
stances. But evidently the prisoners of the bishops were 
continually being released, for we find a special statute ' 
passed in the year 1402 forbidding that clerks found 
guilty of treason (of less degree than plotting against the 
king himself), or who were known to be common thieves, 
should be allowed any sort of purgation. In 1485 an 
Act " was passed by which the bishops might commit 
priests, clerks, and religious men to ward and prison for 
advowtry [i.e. adultery), fornication, incest, or any other 
fleshly incontinence, and they were not to be liable for 
actions for wrongful imprisonment. 

In 1487 a severe blow was aimed at immunity. 
By this Act,' clerks {i.e. such as could read, but who were 
not actually within orders) were to enjoy their privilege 
only once ; and to ensure that they should no longer 
be " continually admitted as oft as they did offend," 
it was ordained that clerks not within orders, who should 
hereafter be convicted of murder, should be forthwith 
branded ' by the gaoler in open court with the letter M 
upon the brawn of the left thumb, and, if found guilty 
of theft,' with the letter T, before being handed over to 
the ordinary officer. 

An ordained priest could appeal to his Church again, 
but if he should claim his clergy a second (or other) time 
he was to have his letters of ordination ready at hand, 
though he might be allowed one day's grace in which 

^ Hale, Pleas of the Crown, ii. p. 384. 

2 Pollock and Maitland, p. 444, ed. 1898 ; p. 427, ed. 1895. 

3 Riley, Chronica Monasterii S. Albani, iii. p. 48. See also Britton, 
Nicols' ed. p. 27. 

* 4 Hen. IV. c. 3. 

5 I Hen. VII. c. 4. 

« 4 Hen. VII. c. 13. 

' Stephen, Hist. Crim. Law, i. p. 463. 

" Holdsworth, Hist. i. p. 382. 



PENAL METHODS OF MIDDLE AGES 51 

tp obtain them — or equivalent evidence from the nearest 
bishop — and if they were not forthcoming he forfeited 
all clerical privileges.^ In 1496 lay persons who should 
miurder their lord, master, or sovereign immediate were 
deprived of their clergy ; and in the fourth year of the 
following reign more exceptions were made, and clergy 
was taken from all, not actually within orders, who 
committed a felony in a church, or upon the king's 
highway, or who slew anybody in his own house.* 

We have already seen with what exceeding difficulty 
a clerk, and more especially a priest, could be degraded 
and cast out of orders. To remedy this. Cardinal Wolsey, 
Archbishop of York, obtained a Bull ' (as regarded Eng- 
land) from Pope Clement VII. in 1528, by which a single 
bishop, assisted by two abbots or other high dignitaries, 
could perform the ceremony.* 

The statute 23 Hen. VIII. c. i (1531) alludes to the 
monition of Edward I. (1275), to the effect that no 
Church prisoners should depart without strict purgation, 
on which Henry VIII. observes that, nevertheless, they 
were released very easily. It cites the statute of Henry IV. 
(1402), which ordered that notorious criminals should 
make no purgation, and goes on to say that the ordinaries 
kept releasing offenders speedily and hastily " for cor- 
ruption and lucre," or because the clergy will in no wise 
consent to take charge of prisoners. The law then 
proceeds to take away the benefit of clergy from the various 
petit treasons previously referred to, and also for arson, 
from all clerks — subdeacons and the grades above them 
still excepted. The clergy within orders were to have 
lifelong imprisonment for these crimes, unless they could 
find guarantees for good conduct — the accused to the ex- 
tent of £40, with two substantial sureties in £20 apiece. By 
this statute it was also intended to relieve the bishops of 

1 12 Hen. VII. c. 7. 

2 4 Hen. VIII. c. 2, a.d. 1512. 

3 T. Rymer, Foedera, torn. xiv. p. 239. London, 1712. 

* Lea, Studies in Church History, p. 189. ., j i- j. 

By the fourth Canon at the thirteenth session of the Council of 1 rent 
in 1 5 5 1 , it was decreed that a bishop or his vicar-general could condemn , 
and even degrade criminous clergy, with the assistance of as many 
mitred abbots, or. in default of them, as many high ecclesiastics as 
there would have been bishops under the old system.— Lecourayer, 
i- P- 550 ; Luzio, Cath. Ency. iv. p. 678. 



52 A HISTORY OF PENAL METHODS 

the burden of maintaining their prisoners, and they were 
empowered to degrade such offending clerks, and to hand 
them over " in sure and safe keeping into the Kill's 
Bench," with a certificate certifying their degradation 
— now so much easier — upon which the king's judges 
were to pass such sentences (usually of death) as would 
have been passed upon the convicted if, at the time of 
their accusation, they had been laymen and not clerks 
of any kind. 

Nor was this all, for in the same year (1531) an Act ' 
was passed by which escapes from the bishop's prison 
were made felony for the clerks ; those within orders 
were to be sent back to their prison, to abide there 
without release. In 1533 * clergy was taken away from 
all who refused to plead, or who challenged above twenty 
jurymen peremptorily. In 1536 ' clergymen within 
orders were to be placed on the same footing with other 
clerks, but this law only lasted about a decade. But 
now the immunity of the clergy began to be taken away 
by a long series of statutes exempting particular crimes 
from any indulgence.* 

In 1576 convicted clerks ceased to be handed over 
to the bishops to make purgation.' For aU " clergy- 
able " felonies. Lords of Parliament • (even when they 
could not read) and the clergy in orders were immediately 
released. The rest who could read were discharged 
for a first offence upon being branded, but the Court 
might also order their detention in prison for not more 
than a year ; the captives who could not read were 
speedily hanged.' 

1 23 Hen. VIII. c. II. 
= 25 Hen. VIII. c. 3. 
' 28 Hen. VIII. c. I, s. 7. 

* " In 1533 unnatural offences, in 1541 witchcraft, were made felonies. 
In 1603 bigamy was made a felony." — Holdsworth, Hist. i. p. 388. 

' 18 Eli2. c. 7. 

* Special, and moral prosecutions were carried out through the 
Court of Star Chamber (3 Hen. VII. c. i) (vide Lingard, Hist. vii. 
P- 377 ; Carter, Outlines of English Legal History, p. loi ; Hudson, 
TreatUe on the Star Chamber), and by the hated Court of High Com- 
mission (i Eliz. c. 1) (see Hale, Precedents and Proceedings in Criminal 
Cases, p. 1., and Ecc. Courts Comm., 1883, p. xxxviii.), which imposed 
some enormous fines and inflicted various painful penalties, till 
they, with the ecclesiastical courts, were overthrown in the year 1640 
(16 Car. I. cc. 10 and 11). 

^ Blackstone, iv. p. 28. 



PENAL METHODS OF MIDDLE AGES 53 

As the privilege of clergy became less worth having 
it was extended : to the bigami, or twice married, in 
1547, and to women ' (professed nuns had always lived 
under the Church's rule) in 1692. Upon conviction 
they were to be treated in the same way as the men in 
similar cases, that is, branded upon the hand, and then 
discharged, either at once or after imprisonment not 
exceeding one year. 

In 1699 ' it was ordered that the branding should be 
done upon the face, but this cruel marking was found 
to prevent the victims from obtaining employment and 
to render them desperate, and the law was repealed six 
years afterwards in the reign of Anne.' In 1705 the 
reading test was abandoned. The distinction had come 
to lie between offences, not offenders,* and all were 
admitted to " clergy" who had been convicted of any 
of these minor felonies which still remained clergyable.' 
The Act of 1705 also provided that such convicts should 
be liable to be sent to houses of correction or to public 
workhouses, for periods of not less than six months or 
exceeding two years, at the discretion of the magistrates. 

In 1717 ° it was enacted that persons (other than 
peers or clerks in orders) guilty of clergyable offences 
might be transported for seven years ' (the usual sen- 
tence was for fourteen), instead of being branded or 
whipped.' In 1779 ' persons liable to be burned in the 
hand might escape with a fine, or they might be whipped 
in public or private, not more than three times ; women 
were to be flogged in the presence of females. By this 
Act the branding was abolished in practice ; '" and about 
half a century later all that remained of the old privilege 
was done away with in the reign of George IV.'' 

1 Women received certain allowances by 21 Jac. I. c. 6 in 1623. 

2 10 & II WUl. III. c. 23. 
^ 5 Anne c. 6. 

< Carter, Hist Eng. Legal Inst. p. 247, ed, 1902. 
^ Stephen, Hist. Crim. Law, i. 463. 

* 4 Geo. I. c. II. 

' Holdsworth, Hist. p. 383. 

' Stephen, Hist. Crim. Law, p. 463. 

• 19 Geo. III. c. 74, s. 3. 

" But was continued in New South Wales up to the year 1797, vide 
D. CoUins's Account, vol. ii. p. 54. 
^ 7 &i Geo. IV. c. 28, s. 6, A.D. 1827. 



54 A HISTORY OF PENAL METHODS 

It has been customary to condemn all these old 
rights for so many years accorded to clerkship, because 
they are supposed to have constituted infringements 
of the principle that all men should be equal before the 
law.' But when we consider the barbarities they pre- 
vented, and after we have examined and ascertained 
the aimlessness and inutility of mere punishments, we 
may be forced to think that they were not an unmixed 
evil, and that, perhaps, they rather made for good. 



Summary and " Poetic " Punishments 

Since the poor human body has always been sensitive, 
so at the promptings of the revenge instinct it has always 
been assailable and most readily beaten. Naturally 
enough, the Duke of Gloster exclaims — in that most 
subtle second act of Henry VI. — ' ' Have you not beadles 
in your town and things called whips ? " Of course 
they had. The serf, the varlet, the vagabond, the lunatic, 
and the petty offender were all whipped with uncertain 
severity ; ^ most likely until the victim was bloody and 
until the operator was tired and felt he had earned his 
fee. Doubtless the whips were of all sorts and sizes. 
They are frequently represented as having three thongs ; ' 
Titus Gates was flogged with a whip of six. * I have seen 
and handled a lash of transportation times, which had a 
thick leather thong bound with wire.^ The cat-o'-nine- 
tails is alluded to in the eighteenth century.' 

Both men and women (the latter up to 1817) were 
flagellated in public, ' being either tied up to a post, or 
fastened behind a cart and so thrashed along the road. 
Perhaps the most obvious thing to do, next to flogging 

' Yet, as Professor Menger expressed it, " Nothing can be so unequal 
as the equal treatment of unequals." 
2 Stephen, Hist. Crim. Law, iii. p. 27. 
2 William Andrews, Old-Time Punishments, p. 153. 

* Dictionary of National Biography. There was an Act of Henry VIII, 
which has been called the whip with six strings, which may have some 
reference to the hangman's usual weapon. 

^ On the old convict ship Success. 

• See Murray, Dictionary, vol. iv. 

' Vide H. B. Irving, Life of Judge Jeffreys, p. 42. 
57 Geo. III. c. 75. 



PENAL METHODS OF MIDDLE AGES 55 

an offender, was to exhibit him to the populace. The 
country was immeasurably more parochial than it is now 
in these times of travel, and to be rendered infamous 
in one's village or neighbourhood was no trifling penalty ; 
and so we find the stocks set up in the towns and hamlets,' 
and, for more serious misdemeanours, there was the 
lofty pillory or neck-catcher (the heals-fang). 

This well-known instrument " was made of all shapes 
and sizes, and varied from a forked post or a slit pillar ' 
to what must have looked like a penal dovecote made 
to hold several prisoners.* The convicted were some- 
times drawn thither on hurdles, and might be accom- 
panied by minstrels on the way.^ The hair of the head 
and beard was shaved off, and sometimes the victims 
were secured by being nailed through the ears to the 
framework, and might also be branded.* With faces 
protruding through the strong beams, and with hands 
through two holes, secured and helpless, they were made 
to stand defenceless before the crowd as targets for any 
missiles that might be thrown. To those who were hated 
this was a serious ordeal, for they would be so pelted and 
knocked about by the mob as to be badly wounded, 
if not actually done to death.' At length those who had 
stood their time were released, and those who had had 
their ears nailed would be cut free, and then they might 
slink away from the scene of shame, or be carried back 
to prison to endure additional punishment. The pillory 
was abolished for all offences except perjury and sub- 
ornation in i8i6,» and altogether in the year 1837." 

Before leaving the middle ages we must examine 
what I have classed as the poetic punishments. These 
were the spontaneous reprisals with which the com- 
munity strove to repay the criminals in kind, and by 

1 See statute of Labourers, 25 Ed. III. c. 2. ^, „ ,. 

2 L. Jewitt, " The Pillory and who they put in it," The Reliquary, 
i. p. 210, April 1861. 

» Besant, Tudors, p. 381. 

* Andrews, Old-Time Punishments, p. 68. 

5 Jewitt, p. 213. 

6 Thid "D 22 1 

"• On one'occakion two informers were killed in the pillory for getting 
certain lads hanged for the sake of reward. See J. Villette, Annals 
of Newgate, vol. iv. p. 116. London, 1776. 

" s6Geo. in. c. 138. 

• 7 Will. IV. and i Vict. c. 23. 



56 A HISTORY OF PENAL METHODS 

which, if strict taliation were seldom attainable, our 
ancestors succeeded in contriving many chastisements 
that were, at any rate, associable equivalents. Of these 
a few examples may be given. For instance, a baker 
who sold loaves which were short of weight was shown 
with the bread tied round his neck.^ A fishmonger who 
had been selling bad fish was paraded with a collar 
of stinking smelts slung over his shoulders.'' A grocer 
who had been selling much-adulterated spices was placed 
in the pillory and had the powders burned beneath his 
nose (a.d. 1395).' A heretic who had advocated strict 
Judaism was sentenced to prison and to be fed entirely 
upon pork.* The Inquisition attached two pieces of 
red cloth in the shape of tongues to the breast, and two 
more upon the shoulders of a false witness, which were 
to be worn for life.^ Indeed, badges and crosses were 
often imposed, and were in these times a dreadful mark 
of Cain." In 1505 two men were sentenced by the 
archbishop to wear a faggot (or a badge representing 
one) upon the left shoulder, to show that they stood in 
danger of the flames.' It would seem they did, for they 
were burned alive in 1511. 

Louis IX. ordered that those who had spoken in- 
decently shovild have their tongues pierced and their 
upper lips cut away.« Pope Innocent IV. remonstrated 
with the king against this barbarity. The mutilation 
of the tongue was a punishment known and inflicted 
in England for blasphemy. In 1656 one James Nayler, 
" the mad Quaker," had his tongue pierced with a hot 
iron for claiming to be the Messiah." He was also whipped 
at the cart's tail, and kept in prison for two years. A 
drunkard was sometimes walked about in a barrel, his 
head protruding from the top and his hands from two 
holes made in its sides." 

' Pike, Hist. i. p. 237. 

" Besant, Mediisval London, p. 354. 

^ J. A. Rees, The Grocery Trade, p. 57. London, igio. 

* W. Hudson, Treatise on the Court of Star Chamber, ii. p. 225. 
5 Lea, Hist. Inq. Middle Ages, i. p. 441. ' 

« Hudson, Treatise on the Court of Star Chamber, p. 225. 
' James Gairdner, English Church, p. 53. 

• Barrington, Ancient Statutes, p. 422. 

' C. H. Firth, Last Years of the Protectorate, p. 10 1. London igog. 
1" Andrews, Old-Time Punishments, p. 140. ' 



PENAL METHODS OF MIDDLE AGES 57 

For the village scold ' they kept the brank or bridle 
of iron, which contained a flat (and for the unfortunate 
witches ^ occasionally a spiked and painful) gag that 
went into the mouth and pressed down the tongue. 
They might also be placed in the local ducking chair ' 
and immersed in water. A remarkable illustration ' 
of the intensely individual and personal aspect of 
primitive penalties ' is furnished where — as it sometimes 
happened — the prosecutor had himself to execute his 
convict assailant, " or dwelle in prison with the felon 
unto the time that he wyll do that office or else find a 
hangman."' 

1 Jewitt, " Scolds and how they cured them," Reliquary, October 
i860. 

* Andrews, Old-Time Punishments, p. 45. 

' See Jewitt, " A few Notes on Dueling Stools," Reliquary, January 
1861. 

* Andrews, Old-Time Punishments, etc., etc. 
5 Holdsworth, Hist. ii. p. 327. 

^ At some of the American lynchings the injured woman applies a 
match to the wood upon which the offending negro is to be burned 
to death. 



CHAPTER II 

THE WITCH TRIALS 

Towards the middle of the seventeenth century there 
lived at Manningtree a certain Matthew Hopkins, whose 
name deserves perhaps to be recorded. Not that he 
stands by any means apart, a veritable Lucifer among 
the devils. Sprenger in Germany, Torquemada in 
Spain, Grillandus in Italy, de I'Ancre in France, and 
other persecutors over Christendom, were better known 
and had killed more people. But Hopkins went to work 
on English ground. The people were then professing 
the same creed that the majority do now. Shakespeare 
had been in his grave more than a generation, and trees 
may have been standing as bushes in the fields and lanes 
of Essex which will yet renew leaves and branches at the 
kiss of coming spring. Hopkins reveals the spirit of his 
time, for it has been wisely observed that every society 
has the criminals it deserves. His kind remain with us 
still as spies and blackmailers, traitors and " friendly 
natives " of the tribe of Judas generally. But they 
derive their power to harm from the community in 
which they live. Parasites need a proper " host " to 
flourish in. A dark and superstitious age it must have 
been to countenance this man ; for he was a professional 
" discoverer," or, as he was sometimes called and styled, 
Witch-Finder General. He began with the destruction 
of some half-dozen persons in his native hamlet. We 
cannot determine what had marked them down — perhaps 
they were his private enemies — moral reform has always 
been a ready pretext to work vengeance with, and has 
been much employed in these latter days. They may 
have been old, eccentric, isolated, or insane ; in any 
case, once seized they had to die, and in their torments 
implicated others, most likely any names conveniently 

68 



THE WITCH TRIALS 59 

suggested to them. The fame of the new discoverer 
spread far and wide. Towns and hundreds in the eastern 
county, and even places far outside its boundaries, sent 
to this fell apostle, saying " Come over and help us," 
and on the track of blood the monster went. It was 
his wont to ride upon these expeditions accompanied 
by another man, and by a female searcher, whose services 
would be required in the minute personal examinations 
which were carried out, especially on women. He made an 
open charge of twenty shillings for each vUlage visited, 
but no doubt in this nefarious calling there were other 
and more profitable ways of extorting money. Can 
we not well imagine what sums may have been paid 
to him (as they are to the "sex" blackmailers of 
to-day) to avoid accusation ? How many may have 
yielded their little all to save some one who was dear 
to them from common iU-usage, probable death, and 
certain disgrace, which such a charge involved ? Who 
knows how extorted gold might influence the ordeals 
enforced ? Who shall say what may have come by 
stealth to the witch-finders to bring ruin upon some 
enemy, perhaps upon some rival ? Who, indeed ? 
From place to place swooped this bird of prey, descending 
on peaceful homesteads and capturing whom he chose. 
Woe to the man, and still more to the woman, who lived 
alone, who kept a black cat, or who was found to carry 
birthmarks on her body, or to be the least out of the 
normal in physical structure ! Woe to the person who 
was eccentric, subject to fits or trances, or who might 
be in any way deranged or of weak intellect ! Woe, 
in fact, to the unhappy creature who by any means 
came in for accusation ! The Pishogue mark would 
thenceforth be upon them ; relations would drop away 
as from contamination with the plague ' ; and the most 
brutal rabble of that time would jostle round, intent 
upon the chase, with their fierce lust for blood not the 
less keen from the idea that there was something Chris- 
tian in their cruelty. The victim would then be seized 
and carried off to further interrogation, ill-treatment, 

» " They died alone and tinpitied," says Lecky ; "... their very 
kinsmen shrank from them as tainted and accursed." — History of 
Rationalism, p. 149. London, 1865. 



60 A HISTORY OF PENAL METHODS 

and torture. Parents and children, comrades and lovers, 
might weep in secret, and the boldest might even venture 
to denounce the senseless iniquity of the proceedings — 
at which they would incur no little danger. But they 
would speak unheeded, and have to linger around the 
gallows till the final act, when something swayed and 
dangled from a cord. 

But somehow good Master Matthew began to be 
unpopular, and many reasons might account for it. 
Perhaps he had been unwise in the selection of his " sub- 
jects " — it looks like it, for one was an old clergyman — 
and lived to find out that some of them had not been quite 
so friendless as he may have counted on. Perhaps the 
supply of lonely or defenceless folk had given out, 
or that in pushing his profession so far afield he 
could not estimate the new material. " Discoveries," of 
course, had to be made to keep up his reputation and 
his income, and as he pursued his way through a wide 
area it may be that quite a large number of people began 
to feel themselves open to accusation, and so were ready 
to consider it suspicious that he alone had such an eye 
for witches. And then a whispering rose amongst them, 
until it reached the persecutor's ears : For sure this 
man is aided by the Devil, or else he would not ferret out 
so many. And he may well have started when he saw 
the anger-light in the fierce eyes around him, and when 
he felt at last the frightful superstitions, which he had 
kindled and well thriven on, were out of hand, turned 
hard against himself. So he produced a little book which 
bears the date of 1647, printed, he tells us, " For the 
benefit of the whole Kingdome." It has upon the title- 
page the somewhat troublesome quotation, " Thou 
shalt not suffer a witch to live" (Exodus xxii. 18). We 
cannot do better than glance through its pages and at 
the " Certain queries answered which have been and 
which are likely to be objected against Matthew Hopkins, 
in his way of finding out witches." 

" Querie I. — That he must needs be the greatest witch, 
sorcerer, and wizzard himself, else hee cotild not doe 
it. 

"Answer.— U Satan's Kingdome be divided against 
itself how shall it stand ? " 



THE WITCH TRIALS 61 

The next paragraph is interesting as once more 
emphasizing the crude and absolutely material notions 
conceived of the spiritual world. 

" Querie II. — If he never went so farre as is before 
stated, yet for certaine he met with the devill and cheated 
him of his booke, wherein were written all the witches' 
names in England, and if he looks at any witch he can 
tell by her countenance what she is ; so by this his helpe 
is from the devill. 

"Answer. — If he had been too hard for the devill and 
got his booke it had been to his great commendation and 
no disgrace at all." 

It wUl be noticed that he does not exactly deny 
even this report, or appear to consider it at all unusual 
to meet the devil walking about casually. " We must 
needs argue," he continues later, " he is of longstanding, 
above 6,000 years, then he must needs be the best scholar 
in all knowledge of Arts and tongues, and so have the 
best skill in Physicke, etc." Mr. Hopkins's own skill, 
he pleads, was really forced on him. " This discoverer 
never travelled for it," he writes in reply to Querie V., 
" but in March 1644 he ha^ some seven or eight of 
that horrible sect of witches living in the towne where 
he lived . . . who every six weeks, in the night (being 
always on a Friday night), had their meetings ^ close by 
his house, and had their severall solemne sacrifices there 
offered to the devill, one of which this discoverer heard 
speaking to her imps one night and bid them go to another 
witch, who was thereupon apprehended and searched 
by women who had for many years known the devill' s 
marks, and found to have three teats about her, which 
honest women have not. So upon command from the 
Justice they were to keep her from sleep two or three 
nights, expecting in that tune to see her familiars, which 
the fourth night she called by their severall names ' and 

1 Meetings of a more or less bacchanalian character really took 
place in Europe through the middle ages, survivals of old rites and 
nature-worship. See Professor Karl Pearson's long and learned account 
of these in The Chances of Death. London, 1897. 

' These were often domestic pets or animals about the yard. Even 
feeding the sparrows on the winter snow would have been dangerous 
for a suspected person. See kind of evidence sought for by R. Bernard 
in his Guide to Grand Jurymen, p. 235. London, 1627, etc. The miser- 
able witches, in the agony of sleeplessness and torment, ultimately 



62 A HISTORY OF PENAL METHODS 

told them in what shape a quarter of an hour before 
they came in, there being ten of us in the roome.' 

" The first she called was (i) Holt, who came in like 
a white Kitling. (2) Jamara, who came in like a fat 
Spaniel without any legs "at all. ... (3) Vinegar Tom, 
who was like a long-legged greyhound with a head like 
an Oxe with a long taile and broad eyes, who, when 
this discoverer spoke to and bade him go to the place 
provided for him and his angels, immediately transformed 
himself into the shape of a child foure years old without 
a head and gave half a dozen turns about the house 
and vanished at the dore. (4) Sacke and Sugar, 
like a black rabbet. (5) Newes, like a Polcat. All 
these vanished away in a little while. Immediately 
after this witch confessed several other witches from 
whom she had her imps, and named to diverse women 
where their marks were . . . and imps' names such as 
Elimanzer Pyewacket, Peck-in- the-crown, Grizzell Greedi- 
gut, etc. ; which no mortall could invent. Twenty- 
nine were condem^t^ at once, four brought twenty-five 
miles to be hanged where their discoverer lives, for 
sending the devill like a beare to kill him in his garden ; 
so by seeing diverse of the men's papps and trying 
various wayes with hunderds of them, he gained the 
experience." 

Although his dealings must be described as mild 
compared with the ghastly, inconceivable tortures in 
vogue with the inquisitors upon the Continent,* his 
victims were yet baited and handled with the grossest 
cruelty. They were supposed not to weep,' being witches, 

doing or saying anything that was already expected of them. See, 
for instance, F. Hutchinson, An Historical Essay concerning Witchcraft, 
PP- 37i 57- London, 1718. 

1 On tiie power of suggestion and imagination, see, for instance, 
G. le Bon, Revue scientipque, March 26 and April 2, 1910. 

2 The whole hideous and devilish procedure is given by J. Sprenger 
and H. Institor in their Malleus MaHfjharum, about 1485-89. Frank- 
fort ed., 1580. 

Paulus Grillandus, De sortilegiis, Ub. 4, De questionibus et tortura. 
Lyons, 1533. 

J. Bodin, De la dimonomanie des sorciers. Paris, 1580. 

K. Scot, The Discoverie of Witch-craft. London, 1584. B.Nicholson's 
edition. London, 1886. 

H. Boguet, Discours des sorciers. Lyons, 1608. 

» Esquirol gives this as a symptom in some forms of insanity. See 



THE WITCH TRIALS 68 

though indeed cause enough was given them. It is 
remarkable in this connection that Shelley,' with how 
much accuracy I am not aware, alludes to " the dry, 
fixed eyeball " of the tortured. Hutchinson ' held this 
phenomenon to have been due to prolonged deprivation 
of sleep and exhaustion. Doubtless the weary length 
of the investigations, and often the age and senile desic- 
cation of the victims, might easily explain a state of 
tearlessness whenever it was really prevalent. 

They were supposed to possess an insensible part 
in their bodies,' and the examiners would prick over 
them to try to find it out. Especially, a witch was affirmed 
to have somewhere upon her person the " Devil's mark." 
" Some bigg or place upon their body where he " (the 
familiar, imp, or spirit) " sucketh them." * This alleged 
"mark" might be almost anything or nothing; from 
an abnormal, and perhaps atavic, teat, down to a birth- 
mark, mole, old scar, or even a tiny vein under an 
eyelid. They were supposed also to float upon being 
" swum." 

They were, for the most part, wizen, old creatures, 
clad in old long-used, greasy garments." Such skirts 
would retain much air ; they might be bound so as to 
favour this, or spread, as with Ophelia, widely inflated. 
It was quite likely they should thus be upborne (and 
also, for they were mostly poor and thin, that the heavy, 
sometimes chained, Bible should outweigh them in the 

E. K. Hunt's translation of Mental Maladies, p. 245. Philadelphia, 1845. 
R. Scot, Discoverie Booke, ii. chaps, v.-viii. 
Bodin, D&nonomanie, p. 170. 
James I., Daemonologie, p. 81. 
H. Boguet, chap. xlvi. 

* The Cenci. 

2 Historical Essay, p. 139. 

' See J. P. Migne, Encyclopidie thiologique, vol. xlix. tome seconde, 
p. 72. Paris, 1848. 

Charles Mackay has observed : " It was no unusual thing then, 
nor is it now, that in aged persons there should be some spot on the 
body totally devoid of feehng" (p. 137). In Scotland there were 
a number of witch-finders who were known as " common prickers " 
(p. 146). — Popular Delusions, London, 1869. 

* Michael Dalton, The Countrey Justice, p. 242. London, 161 8. 
James I., Daemonologie, p. 80. 

Matthew Hopkins quoted, p. 33, ante. 

Sinistrari of Ameno Demoniality, p. 27. J. Liseux, trans. Paris, 1879. 

D. Neal, History of New England, p. 137. London, 1747. 

' Hutchinson, Essay, p. 138. 



64 A HISTORY OF PENAL METHODS 

ordeal with scales). But ordeals are uncertain and 
dangerous unless they can be carefully manipulated. 
Mr. Hopkins had been keen on the wa'ter test ; it was the 
finishing touch and proof at the end of a long series of 
torments and examinations. 

But a day came, it is said, on which a few brave 
Englishmen, who had perhaps lost some one near and 
dear to them at his hands, laid hold upon the witch- 
finder himself, and binding him in a sack, cast him 
into a pool. It was a bold act, in those savage days, 
to interfere with any kind of inquisition. Catholic or 
Puritan, and was no doubt attended with great risk. 
But only for a moment in this case, for there before them 
bobbed the dread discoverer of witches, floating upon 
the surface of the water ; and all declared the devil got 
his own. But such an end was altogether unexpected 
and unusual ; it was downright bad luck and misfor- 
tune, from Mr. Hopkins' point of view. His position 
appeared unassailable, and indeed probably would have 
been, if he had kept to the right sort of people, and 
practised on the isolated or unpopular, who could have 
been legitimately sacrificed. All he had done was quite 
lawful and regular. 

Witchcraft, like many acts against religion and 
morality, had always been an ecclesiastical offence, and 
had been punished in the secular courts as leading to 
murder and personal injury,' and it was made a felony 
in 1541.' But it was the (then) recent law of 1603 that 
was much in force,' by which, in the quaint language 
of the statute, it was forbidden, upon pain of death, to 
" employ, feed, or reward any evil and wicked spirit." * 
And since the High Court of Parliament had recognized 
witches,' it became necessary to investigate accusations 
and probe for " spirits " through the forms of law. Thus 
Hopkins could claim to be a moral reformer, putting in 
force the statute of the realm ; he could quote Scripture 

' T. Wright, Dame Alice Kyteler, London, Camden Society, vol. 
xxiv., 1843. 

2 H. L. Stephen, State Trials, vol. i. p, 211. London, 1899. 

3 Hutchinson, p. 34. 

* See long and interesting essay on witchcraft in the Ency. Brit, 
ninth ed. 

5 The Act is quoted at length in R. Royston's Advertisement to Jury- 
men of England, in which he criticizes del Rio's and Perkins' " proofs." 



THE WITCH TRIALS 65 

clearly to his purpose, the justices and gaolers obeyed 
his call, assizes waited to condemn his prisoners. And 
if his method seemed superstitious or barbarous, he 
could perhaps cite Mr. Perkins' way,* or could refer 
to Mr. Kincaid's custom in these matters,^ and could 
quote standard works with precedent on his side.' 

So he seemed truly to have a safe task and a paying 
one, bunt up upon the prejudices of the people. But 
as by their superstitions he rose, so also by them he fell — 
utterly, and unpitied. * It was not his monstrous cruelties, 
but " God's ordeal," which showed him up, delivered 
to the devil ; and, in the caustic words of Samuel Butler, 
as one ' ' who after proved himself a witch, and made a 
rod for his own breech." " 

But now, dismissing this particular parasite, we may 
review the course of thought upon the question. Belief 
in witchcraft is so ancient and so universal," that the 
existing religions, and perhaps all religions whatsoever, 
must have arisen in its atmosphere. 

From time to time the Christian Church dealt with 
the question,' and had elaborated quite a ritual of tests 
and remedies. And it was after nearly fifteen hundred 
years of Christianity that Pope Innocent VIII.' issued 
a special Bull against all supposed witches (December 5, 
1484), naming one Sprenger, a Dominican, and Kramer — 

1 Alluded to by Cotton Mather, The Wonders of the Invisible World. 
Boston, 1693. 

a James Williams, Ency. Brit, ninth ed. vol. xxiv. p. 622. Kincaid 
was one of the " common prickers " or professional finders, who in 
those superstitious times were numerous. 

3 For instance, Michael Dalton, The Countrey Justice, p. 242 ; 
Richard Bernard, A Guide to Grand Jurymen, p. 240. 

* Whether the story of his immersion is true or not, he undoubtedly 
died despised and discredited. 

^ Hudibras, Part III. chap. iii. 

» Coming down, maybe, from the prehistoric mother cult. See 
Karl Pearson, "Woman as Witch" in his Chances of Death, and O. M. 
Hueffer, Book of Witches. 

' Exorcism, etc. Paul Regnard, Les Maladies ipidimiques de 
I'esprii, is full of engravings of old pictures illustrating the point. 
Paris, 1887. 

» Although the Popes, such as John XXII., Innocent VIII., Julius II., 
and Adrian VI., legislated on witches, the Protestants were quite as 
vindictive. See, for instance, J. Michelet, Life of Luther, bk. v. chap. vi. : 
"The crazed, the halt, the blind, and the dumb are all possessed 
with demons. Physicians who treat these infirmities as arising from 
natural causes are fools who know not the power of the devil." We shall 
deal later with the works of Puritan divines in England and America. 

5 



66 A HISTORY OF PENAL METHODS 

whose name latinised to Institor — inquisitors to seek and 
punish them ; and this they did with frightful cruelty. 
They wrote a text-book on their methods and discoveries 
about 1489, and kept the torture chambers busy and 
the faggots fiercely burning. 

Their book was answered by John Wier, physician 
to the Duke of Cleves, in 1563.' He refuted many of 
the grosser superstitions prevailing, and also suggested 
that the devil deceived people and made many confess 
to impossible practices ; * likewise, that the witches did 
not really occasion the illnesses and calamities which they 
were accused of causing and even admitted having 
brought about. 

At first the work awakened only controversy and 
condemnation — a stage in advance, however, since the 
most wronged are generally undefended, and pass to 
their doom in silence and with no one to speak for them. 

In 1580 Bodin, a French writer, published a most 
furious attack on Dr. Wier, declaring him to have been 
the pupil of the sorcerer and that he wrote inspired by 
the devU. He reiterated all the old fantastic stories 
as being true, and in the hideous procedure of investi- 
gation which he set forth, applied such diverse and such 
agonising torments as could not have been surpassed 
by any of the earlier inquisitors. 

Bodin in turn was answered, from England, by 
Reginald Scot, in 1584, who wrote a long and powerful 
review of the witch persecutions, in which he quotes 
extensively from Sprenger, Bodin, and the Continental tor- 
mentors. Full of wise saws and modern instances, he cast 
doubts on the rationale of the witchcraft tests and trials. 

But although just a century had gone by since In- 
nocent launched his Bull from the Papal throne, many 
poor people, some at that time unborn, were destined 
still to suffer trial and torture. And more than another 
century had to pass before the law would leave ' ' witches " 
alone ; before afflicted, half-mad, or unpopular old 

1 Chapters xi., xiv., etc. ; French edition of 1579; 

» This theory was advanced by George Gifiord in A dialogue concerning 
witches and witchcraft. In which is laid open how craftily the Devill 
deceiveth not only the witches but many others. London, 1603. And 
by John Webster, who was sceptical of the miraculous in his Displaying 
of supposed Witchcraft, i6jy. 



THE WITCH TRIALS 67 

women could throw crumbs to the sparrows upon the 
snow, or keep a cat, without danger of death. King 
James, as a young man, fell foul of both Scot and Wier 
in 1597. Speaking of them he said : " One called Scot, 
an Englishman, is not ashamed in publicke print to 
deny that there can be such a thing as witchcraft, and 
so he maintains the old error of the Sadducees in 
denying spirits. The other called Wierus, a German 
phisition, sets out a publick apologie for al these 
crafts-folkes — whereby procuring for their impunitie 
he plainly betrayes himselfe to have been one of 
their profession " ; and six years later came his 
grotesque law already alluded to, sanctioned with all 
the weight of Parliament.^ The trials in Germany were 
severely criticised in 1631 by Father Spee, who published 
his book at first anonymously,* and checked the ardour 
and the cruelty of the courts. 

But they were defended again by Joseph Glanvill,' 
chaplain to the King, in 1681. About this time Dr. 
Beldker, a clergyman, living in Holland, compiled four 
lengthy volumes about witchcra:ft,* in which he contended 
that neither devils nor spirits could act on mankind. 
In England, ten years later, wrote Richard Baxter,' 
author of The Saint's Rest and other evangelical works 
which were widely read, supporting the weird beliefs 
of the witchcraft schoolmen. 

By this time the persecutions, which were waning 
in England, had broken out at Salem in America ; and 
we find Cotton Mather (like Glanvill, a divine, and F.R.S.) 
writing a little book ' to justify their existence (and ' 

* In 1609, a terrible commission scourged the regions round Bor- 
deaux and Labonrt in Western France. See P. de I'Ancre, Tableau 
de I'inconstance ties Mauvais Anges, 1612. Under Louis XIV. the lurid 
Chambre Ardente was set up in 1679, and lasted till 1682. La Reynie. 
the Lieutenant-General of Police, was an active inquisitor. See 
F Funck-Brentano, Princes and Poisoners ; G. Maidment, trans. 
London, 1901. 

' Cautio Criminalis, 1631. 

' Saducismus Triumphatus , 1681. 

* In Dutch, 16/1 ; French translation, Le Monde enchanti. Amster- 
dam, 16^4. 

* The Certainty of the World of Spirits. London, 1691. 

' The Wonders of the Invisible World : Observations upon the Nature, 
the Number, and the Operations of the Devils. 
' R. Calef, More Wonders of the Invisible World. London, 1700. 



68 A HISTORY OF PENAL METHODS 

his own conduct, for many were sceptical), upon that 
continent where, as he quaintly says, the Pilgrim Fathers 
" imagined that they should leave their posterity 
in a place where they should never see the inroads of 
Profanity or Superstition." The records of the nineteen 
executions in this neighbourhood, of one poor creature 
who was pressed to death, and of the crowd of unhappy 
suspects who were cast into the prison,^ show how the 
frenzy of this murderous " revival" swept like an epi- 
demic down upon the settlement,'' so that for fifteen 
months the air seemed charged and laden with hysteria 
and are a grim commentary. But evolution operates 
even on taboos and superstitions, and this was probably 
the last general persecution, and Bishop Hutchinson 
called his learned work An Historical Essay," for it was 
dealing mainly with the past. The law lagged behind, 
however, as it generally does, the statute of James I. 
(1603) being, when Hutchinson wrote, " now in force " 
in 1718. And so it continued for eighteen years longer, 
until repealed in 1736.* In Ireland the law lasted until 
1821. 

Witchcraft was clearly kept alive by theology. People 
who really believed in a personal devil (and even 
those who questioned the witch-convictions assumed 
the devil to be very much alive, designing mischief 
and disguised everywhere), could easily accept tales of 
familiar spirits.' 

Those who received the Hebrew and Christian records 

1 D. Neal, History of New England. — " The prisons were hardly able 
to hold the number of the accused." 

2 As it did as late as 1861, round the little village of Morzines in 
Savoy ; see A. Constans, Une Relation sur une ipidimie d'hystirio- 
dimonopathie. Paris, 1863. 

Dr. R. Madden gives a long account of various historical outbreaks in 
his Phantasmata, chap. x. " Maniacal Epidemics, etc." London, 1857. 

E. Pronier, Etude sur la contagion de la Folie. Lausanne, 1892. 

L. F. Calmeil, De la Folie. Paris, 1845. 

'^ An Historical Essay concerning Witchcraft. 

* Lecky, History of Rationalism. 

s One mediaeval writer was said to have estimated the exact number 
of the various devils, which he stated as 7,405,926 ; see Jules Garinet, 
Histoire de la Magie, p. xxviii. Paris, i8i8. Another declared that 
there were six principal genera of demons ; R. Madden, Phantasmata, 
p. 293. Another author puts the devils at 2,665,866,746,664; see 
P. Carus, History of the Devil, p. 346. London, 1900. 



THE WITCH TRIALS 69 

as altogether inspired, could not ignore possession and 
sorcery.^ " Apres qne Dieu a parl6," says de I'Ancre, 
" de sa propre bouche des magiciens et sorciers, qui 
est I'incredule qui en peut justement douter ? " » And 
Sir Matthew Hale said in his summing up : " That there 
were such creatures as witches, he made no doubt at all. 
For, first, the Scriptures had affirmed so much ; secondly, 
the wisdom of all nations had provided laws against 
such persons, which is an argument of their confidence 
of such a crime." ' 

Speaking of a particular case, Mr. H. L. Stephen • 
quotes. Campbell as follows : "... During the trial the 
imposture practised by the prosecutors was detected 
and exposed. Hale's motives were most laudable ; 
but he furnished a memorable instance of the mischief 
originating from superstition. He was afraid of an ac- 
quittal or a pardon, lest countenance should be given to 
a disbelief in witchcraft, which he considered tantamount 
to disbelief in Christianity." Glanvill" follows on the 
same side, arguing with great ingenuity from the scrip- 
tural point of view (for instance, in dealing with certain 
doctrines as to the fate of unbaptized children, p. 22). 
" The question whether there £ire witches or not," he 
begins in Part ii., " is not a matter of vain speculation 
or of indifferent moment, but an inquiry of very great 
and weighty importance. For on the resolution of it 
depends the authority of our laws, and, which is more, 
our religion, in its main doctrines, is nearly concerned." 

And what may be called the religious belief in witches • 
— a very different thing from the torturing of them — out- 
lived the penal laws concerning them.' The Rev. John 
Brown of Haddington (1703-1791) complained of the 

' " Quae quidam nefandissima opera si non vere fierent, sed delusoria, 
vane contra ea fuissent promulgatae leges et in legum ipsarum anclores, 
etia in ipsum Deum, ista retorqueretur vanitas : quod extrema blas- 
phemia est." — B. de Spina, Quaestio de sirigibus, p. 8. Rome, 1 576. 

2 Sortilige, p. 599. Paris, 1622. 

3 A Tryall of Witches, 10th March 1664, Sir Matthew Hale, Kt. 
Appendix by C. Clark, p. 20. London, 1838. 

* State Trials, i. 

' Saducismus Triumphatus. 

' The Roman Catholic view of sorcery and evil spirits is treated 
at length by R. R. Madden, Phantasmata, chap. ix. 

' A. Chalmers, Biographical Diet., art. " Cotton Mather." London, 
1815. 



70 A HISTORY OF PENAL METHODS 

repeal of King James's Act/ and even John Wesley 
{1722-1787) declared that giving up witchcraft is, in 
effect, giving up the Bible. ^ On page 366 of the journal,' 
which he edited we read : " With my latest breath will 
I bear testimony against giving up to infidels one great 
proof of the invisible world : I mean that of witchcraft 
and apparitions, confirmed by the testimony of all 
ages" ; ' and Huxley' alluded to a contemporary clergy- 
man who had been preaching diabolical agency. Nor 
did the actual persecutions cease altogether, and though 
the last legal trial in England took place in 1712 ' (the 
last execution in Europe is given by Lecky ' as occurring 
in Switzerland in 1782 ; another authority mentions 
Posen,' with date 1793), sporadic outrages continued 
in the country, and persist in a modified form to the 
present day." At Clonmel, Ireland, in 1895,'° a poor 
old woman was placed upon the kitchen fire by her own 
family and burned, so that she died from the effects." 
But what were once pious customs and duties had at 
length become crimes, and the chief mover in this latest 
witch trial got (to the best of my recollection) twenty 
years' penal servitude. 

A belief so universal as that in witchcraft must 
clearly be founded upon positive phenomena. It will 
not serve our purpose to discuss what yet unknown 
supernormal powers might be attained under special 

1 '' We cannot help lamenting that a sect among us looks upon the 
abolition of the penal statute against witchcraft not only as an evil 
but as a sin. . . . The Seceders published an Act . . . in 1 743 (reprinted 
at Glasgow, 1766). In this Act is contained the annual confession of 
sins. . . . Among the sins national and personal there confessed are 
. . . (that) the penal statutes against witchcraft have been repealed 
by Parliament, contrary to the express law of God." — H. Amot, Criminal 
Trials in Scotland, p. 370. Edinburgh, 1785. 

' Lecky, History of Rationalism, p. 134. 

^ Arminian Magazine, v. p. 366. London, 1782. 

* Dr. H. More, employed the same argument in his Antidote against 
Atheism, lib. iii. chap. ii. London, 1653. 

° Lay Sermons. London, 1870. 

' H. L. Stephen, State Trials. 

' History of Rationalism, chap. i. 

8 J. Williams, Ency. Brit., ninth ed., art. "Witchcraft.'' 

' Mackay, Delusions, pp. 184, 187, etc. 

*" History of Rationalism, p. 4, etc. 

" See article on the case by E. F. Benson, Nineteenth Century, 
vol. xxxvii. June 1895. A somewhat similar case occurred at Tarbes 
in 1850. — History of Rationalism, p. 4. 



THE WITCH TRIALS 71 

conditions, or how much more there may be to discover 
beyond X-rays and wireless telegraphy. For while old 
ideas as to imps and devUs, brooms and black cats, 
were manifestly ridiculous, and although the abnormal 
powers, whatever they may have been, could work no 
rescue in the hour of need, there may be many things 
in heaven and earth undreamed of in our present state 
of knowledge. But ordinary witch cases appear to have 
been resolvable into the examination of — 

{a) Hysterical subjects — sometimes crowds of them — 
who might imagine anything and accuse anybody, includ- 
ing themselves. Such people were (and are) often given 
to swallowing needles and other things, some of which 
found their way through the body and emerged from all 
parts of it.' This would have been considered strong 
evidence of diabolical agency. Many of these would be 
subject to epilepsy, catalepsy — accompanied sometimes 
by that strange insensibility to pain ' which was remarked 
on by the torturers — and to obscure nerve diseases gene- 
rally. 

{b) "Wise women,"' midwives, doctors good and 
bad, who may, according to the custom of the times 
in which, as among savages, magic * and medicine were 
inextricably mingled, have resorted to charms " (as are 
stUl employed by old women to cure warts), and some- 
times, doubtless, to preparing and administering actual 
poisons ; ' and who, whenever anything remarkable 

1 " What sort of distemper 'tis shall stick the body full of pins ? " 
— Quoted by Calef, More Wonders, p. S. 

2 Scot quotes a ghastly passage from Grillandus, who writeth " that 
when witches sleepe and feel no paine upon the torture, Domine labia 
mea aperies should be said, and so, saith he, both the torment will be 
felt and the truth will be uttered." — Discoverie of Witchcraft, p. ly. And 
we find in del Rio : " Narravit mihi . . . anno 1599 captam puellulam 
strigatricem, quae nee pedum ustulationem saevissimam, nee flagra 
vaUdissima sentiebat ; donee Sacerdos cujusdam monitu illi Agni 
benedicti ceream imaginem in collum injecere, turn enim vi sacra 
amuleti daemonis praestigiosa ludibria depulsa et ilia vim doloris 
coepit persentiscere." — Disquisitionum magicarum, p. 184. Venice, 
1616. See also E. Gurney, Phantasms of the Living, p. 181, who 
considers the insensibility to pain may have been due sometimes to 
autohy pnotism . 

' Mentioned, for instance, in Twelfth Night. 

* " Les sorciSres furent las sages-femmes et les sorciers les medecins 
du moyen dge." — P. Christian, Histoire de la magie, p. 400. Paris, ? 1 87 1 . 

' E. Gurney, Phantasms of the Living, p. 183. 

* Lecky, History of Rationalism, p. 77. 



72 A HISTORY OF PENAL METHODS 

occurred, were always liable to be accused of having 
in some way trafficked with the all-explaining devil.' 
They sometimes claimed to possess the powers of witches, 
and tried to gain support Or protection from being feared, 
deceiving others and often themselves as well/ 

(c) Private enemies,' whom an accusation of witch- 
craft,' or of any of the little group of offences ^ which 
were always supposed to be closely allied with it,' was 
the readiest way to ruin.' 

(d) People accused for the sake of gain by means of 
deliberate plots and conspiracies. Feigning to be be- 
witched, and naming some (known to be) innocent 
person as the cause of the mischief, was a mean crime 
that was by no means uncommon, and many flagrant 
instances are given of it by early criticisers.' 

(fi) The main body of the victims.' Old women 
who had outlived family and friends, who were helpless 
and solitary," ugly from age, unclean from infirmities, 

1 R. Calef , the opponent of Cotton Mather, quotes an instance of this 
kind. One Margaret Rule, having been seized with fits, "... some 
of the neighbours were forward enough to suspect the rise of the 
mischief in a house hard by, where lived a Miserable Woman who had 
been formerly imprisoned on the suspicion of witchcraft, who had 
frequently cured very painful hurts by muttering over them certain 
charms wliich I [? C. M.] shall not endanger the Poysoning of my Reader 
by repeating." — More Wonders of the Invisible World, p. 3. Boston, 1700. 

2 See O. M. HuefEer, The Booh of Witches. London, 1908. 

3 See action of Richard III. 

* The full indictment against Lord Hungerford, who was beheaded 
on Tower Hill along with Thomas Cromwell, by Henry VIII. 

^ P. de I'Ancre, Seconde Consideration. As to the kind of offences 
" qui se trouvent envelopp6s dans le sortildge," Tableau de I'inconstance 
des Mauvais Anges. Paris, 1612. 

* J. Bodin, Ddmonologie, p. 60. Paris, 1580. 

' Shamanism, etc. See, for instance,. Elie Reclus, Primitive Folk, 
pp. 68, 70. London, 1889. 

It was a crime imputed with so much ease and repelled with so 
much difficulty, that the powerful, whenever they wanted to ruin the 
weak .... had only to accuse them of witchcraft to secure their 
destruction. — C. Mackay, Popular Delusions, p. 109. A certain G. 
Naud6, " late Library Keeper to Cardinal Mazarin," wrote a book, 
entitled The History of Magic, " By way of apology for all the wise 
men who have unjustly been reputed magicians from the creation to 
the present age." Enghshed by J. Davies. London, 1657. 

* The most tainted or prejudiced evidence was received in these 
kinds of cases. See Concilium Biterrense of a.d. 1246, c. 12. Labb6, 
torn, xxiii. p. 718. 

8 Scot, Discoverie, bk. i. chap. iii. 

1" Mostly poor, miserable old women, Glanvill admits. — Saducismus, 
p. 29. 



THE WITCH TRIALS 73 

eccentric in wisdom, crazy with delusions, palsied in 
limbs, or wandering in mind.' All these, or nearly 
half the old folks in the land, were always liable to 
accusation on account of their misfortunes.' They were 
the wretched scapegoats of those times, on whom was 
laid whatever might befall, from epileptic fits to summer 
haU.' 

(/) The people denounced by prisoners under torture. 
As we have seen, accusation meant examination, and 
this had two objects: to extort a " confession" from 
the suspected witch, and to compel her to reveal ac- 
complices. Some might confess at once, and did so in 
the hope of execution (the kind of confession required 
was already well known), and the more monstrous and 
elaborate it might be, the better would be the chance 
of escaping torture. Others would naturally deny taking 
part in abominations in which they had not engaged, 
and most of which were beyond possibility. And no 
doubt nearly sdl would make a long and desperate 
struggle against incriminating their unfortunate friends, 
who might, however innocent of crime, be also other 
people's enemies. And so the accursed ingenuity of 
man was practised on these miserable victims of his 
ignorance and superstition. One hideous device * tried 
by a Prankish king was to drive sharp spikes underneath 
the nails ; ' this, he contended, always induced con- 
fession from the intense anguish. Very likely it did. 

Other inquisitors went their own sweet way, and used 
all possible varieties of the question, that they might 

* " None ever talked to themselves who were not witches," asserted 
one of the common prickers. — ^Mackay, Delusions, p. 147. 

* Especially as they often pretended, or really beUeved in, powers 
and curses, and, being quite helpless on the material side, invoked 
the aid of supernatural terrors to get assistance and be looked upon 
with fear. 

' Various persons accused of witchcraft, says Boguet, " ont confess^ 
qu'ils faisoient la gresle en Sabbat afin de gaster les fruicts de la terre." 
— Discours des sorciers, p. 144. Storms were supposed to be occa- 
sioned by the devils. " Telle est I'origine de I'habitude de sonner 
les cloches pendant les orages." — L. F. A. Maury, La Magie, p. 102. 
Paris, i860. 

* Bodin, Dimonologie, p. 171. 

* Scot, Discoverie, p. 17. And this was also practised on a prisoner 
accused of sorcery before James I. — Lecky, History of Rationalism, 
p. 114. 



74 A HISTORY OF PENAL METHODS 

make out of the shrieks and ravings the sort of story 
they expected and prompted,^ and lash more suspects 
down upon the rack. No wonder, then, that persecution 
spread ; ' the aged and the disordered were always 
there, and any one of these might be thought a wit^h,' 
or find herself denounced from the torture-room — per- 
haps by a lifelong friend. 

The readiness with which all "evidence" was ac- 
claimed and the appalling means by which it was got 
together placed any abnormal person in constant peril, 
and will account for the enormous numbers of the im- 
plicated. Tens of thousands of victims, says Lecky,* 
perished by the most agonising and protracted torments 
without exciting the faintest compassion. In a single 
German city they used to burn 300 witches annually.' 
In Nancy, 800 were put to death by a judge in the course 
of sixteen years." Zachary Gray,' who edited an edition 
of Hudihras, claims that during the Long Parliament 
500 witches were executed each year, and that he read 
through a list of no less than 3,000 of them.' The total 
of Great Britain has been estimated at 30,000," and it 
has been estimated that during the sixteenth and seven- 
teenth centuries the witch death-roll for Europe ^° reached 
200,000 people." 

Perhaps the sidelights give a more graphic conception 
of what went on in those dark days of error. Listen to 

1 One of the early inquirers as to the witch trials took a friend in 
with him to witness a torturing. As an experiment, he asked the 
prisoner if his companion, an entire stranger, had not been one of her 
accomplices, and the poor creature moaned out that he had. 

2 " Le diable est si bon maistre que nous n'en pouvons envoyer 
si grand nombre au feu, que de leurs cendres il n'en renaisse de nouveau 
d'autres." — Florimonde de Raemond, Antichrist, p. 103. Lyons, 1597. 

^ It became a common prayer, with women of the humbler class, 
that they might not live to be old. It was sufficient to be aged, poor, 
or half-crazed to ensure death at the stake or on the scaffold. — Mackay, 
Delusions, p. 116. 

* History of Rationalism, p. 3. 

^ Mackay, Delusions, p. 159. 

" Lecky, History of Rationalism, p. 4. 

' Quoted by W. B. Gerish, A Hertfordshire Witch. London, 1906. 

' Mackay, Delusions, p. 139. 

" H. C. Lea, History of the Inquisition in Spain. New York, 1907. 

«» W. F. Poole, Salem Witchcraft. Boston, 1869. 

^ 300,000 women are said to have been slaughtered since Innocent's 
Bull of 1484. See an important article in Chambers's Encyclopesdia, 
X. p. 698, ed. of 1 90 1. 



THE WITCH TRIALS 75 

this complaint of a French writer ' who evidently thought 
he was approaching the " last days." " Was it [sorcery] 
ever so much in vogue as here in this unhappy [six- 
teenth] century ? The benches of our courts are all 
blackened by them ; there are not sufficient magistrates 
to hear the cases. Our prisons are gorged with witches, 
and not a day passes but our warrants are ensanguined 
with them, and we return saddened to our homes, 
shocked at the ghastly and appalling things that they 
confess." And in our own land, about fifty years later, 
we come upon a letter written to Sir Edmund Spencer 
in 1647 : " Within the compass of two years near upon 
300 witches were arraigned, and the greater part exe- 
cuted, in Essex and Suffolk only. Scotland swarms 
with them now more than ever, and persons of good 
quality executed daily." " 

It was in Scotland, likewise, that there used to be 
kept a chest " locked with three severall locks and 
opened every fifteenth dale," ' which might receive, as 
did the Lion's Mouth at Venice, denunciations slipped' 
in secretly ; and that in 1661 the justices were ordered 
to attend certain towns to hear cases of witchcraft at 
least once a week.' 

The witch trials are ended. So far as they are con- 
cerned, we can look back from the heights of history 
over this vast red sea of superstition which has swallowed 
up such multitudes. And to think it was all so useless, 
so unnecessary ! ° but yet by no means hard to be ex- 
plained. The underlying and provocative phenomena 
had really been present in a huge number of cases (and 
when they were not, were fervently conceived, and so 
suggested, looked for, and enforced as to set up all kinds 
of hallucinations in the accusers and sometimes in the 
accused), and in default of tracing out their causes,' 

' F. de Raemond, L'Antichrist, p. 102. 

One writer estimated the number of sorcerers living in Europe at 
1,800,000. See Calmeil, tom. i. p. 217. 
2 James Howell, Familiar Letters, 1688. 
' Scot, Discoverie, p. 16. 

* Ency. Brit, ninth ed. vol. xxiv. p. 622. . , j n 
5 " On the enactment of the statute to repeal the law, vanished all 

those imaginary powers so absurdly attributed to old women oppressed 
with age and poverty." — H. Arnot, Criminal Trials, p. 369. 

• The late Mr. Gumey, of the Psychical Research Society, found. 



76 A HISTORY OF PENAL METHODS 

evident or recondite, clergy and jurists, and of course 
the populace, gave out a false and thaumaturgical account 
of them. They were correct in affirming many amazing 
facts and phenomena (and all these persist, for nature 
has not changed.' There are at least as many abnormal 
and half-mad people amongst us now as there ever were, 
only we treat the clearer cases kindly, and are no longer 
afraid of mythical influences), although these were magni- 
fied and multiplied million-fold, for Superstition is a 
monster that grows by feeding. They were fantastic 
in their fabulous explanations of them. The rest — in 
those cruel times when torture was as common as is 
cross-examination — followed quite naturally. The doctors, 
theological and legal, erred in their diagnosis, mistaking 
diseases for devils and abnormality for magic. We 
shall come upon this again, crass and close at hand. 
May the future condemn the Present, as we now deplore 
the Past. 

after a most extensive investigation, " a total absence of respectable 
evidence, and an almost total absence of any first-hand evidence at 
all, for those phenomena of magic and witchcraft which cannot be 
accounted for as the results of diseased imagination, hysteria, hypnotism, 
and occasionally, perhaps, telepathy." — Phantasms of theLiving.i.p. 172. 
' See E. B. Tylor, Primitive Culture, ii. p. 130. 



CHAPTER III 

TREATMENT OF THE INSANE 

As the abnormal and the rationally eccentric were 
considered witches, and held to have been disciples of 
the devil, so the more obviously sense-bereft were thought 
to be controlled by the fiends within them. Both 
witches and lunatics were held to be beneath the sway 
of infernal powers, but the former as willing agents of 
the devil, and the latter as involuntary victims, who 
were deemed to be possessed. In ancient Egypt, by 
the Temple of Saturn,' in classic Greece with the As- 
clepieia, and by the laws of Pagan Rome,'' the mentally 
afflicted were treated with humanity, and, if without the 
aid of our present science, at least upon the same broad 
principles which we adopt to-day. 

In the warm sunlight of the Eastern lands the life 
of the population was spent in the open air. As we 
read in the Scriptures and in books of travel, the lunatic 
might dwell amidst the tombs. He could wander through 
the soothing cypress groves in the moonlight or lie under 
shading palm in the noontide heat. He dwelt apart, 
like the leper, cut off by his terrible infirmity from the 
kinship of reason, but free at least in the air and sunlight, 
and often allowed a quite especial licence ' as being in 
the guardianship of God.* But the troublesome conduct 
into which lunatics were ever liable to be led ' would 

1 J. B. Tuke in the Ency. Brit. 

2 E. Westermarck, The Origin and Development of the Moral Ideas, 
i. p. 269. 

' Westermarck, Moral Ideas, i. p. 270. 
« E. B. Tylor, Primitive Culture, ii. p. 117. 

* See, for instance, the story called " The Sleeper Awakened " in 
the Arabian Nights. 

77 



78 A HISTORY OF PENAL METHODS 

frequently rouse the instinct of retaliation, and bring 
down swift and heavy punishment upon them.^ 

In Europe also and in England the less-dangerous 
lunatics "were allowed to wander about the country,' 
beggars and vagabonds, affording sport,' and mockery. 
We get a vivid glimpse from Shakespeare of that " poor 
Tom * that eats the swimming frog, the toad, the tad- 
pole, the wall newt and the water newt, that in the fury 
of his heart, when the foul fiend rages, eats cow-dung 
for sallets, swallows the old rat and the ditch dog, drinks 
the green mantle of the slimy pool ; " who is whipt from 
ty thing to tything, and stocked, punished, and im- 
prisoned."" 

This was the lot of sufferers in those times, and 
beyond doubt a certain number of them, unmindful or 
unheedful of savage laws, obeyed the obsessing suicidal 
impulse which is so common among mad people ; and 
through this many of the most afflicted must have been 
taken, in the mercy of nature, out of the world of men 
in which they had no part. But if the half-witted poor 
were allowed to wander,' those of the richer class were 
less fortunate. Their families were shy and ashamed 
of them ; they were concealed and lodced in garrets 
and cellars, or penned apart, secured in 'sheds and out- 
houses — fastened up anywhere about the premises,' 

Medicines there were indeed for the insane patients, 
and some of them might have added to the witches' 
cauldron.' Among the less nauseous of these came 

1 The severities to which the insane were subjected by various 
tribes are mentioned by Westermarck in Moral Ideas, i. p. 271. 

2 John ConoUy, Treatment of the Insane, p. 4. London, 1856. 

' F. Beach, Psychology in John Hunter's Time : " they served as 
a sport to visitors at assizes, fairs, and other times" (p. 4). Hunterian 
Oration. London, 1891. 

• For an account of these wandering Tom o' Bedlams, see Isaac 
D'lsraeli, Curiosities of Literature, ii. p. 343. London, 1849. 

^ " Come, march to wakes and fairs and market-towns. Poor Tom, 
thy horn is dry." — Lear, iii. 6. 

• Lear, iii. 4. 

' Walter Besant, London in the Eighteenth Century, p. 378. London, 
1902. 

• This lasted right into the nineteenth century : see D. H. Tuke, 
Chapters in the History of the Insane, p. 128. London, 1882. 

' See, for instance, W. Besant, London in the Time of the Stuarts, 
p. 236. London, 1903. And for a particularly filthy mixture advised 
" For a man haunted by apparitions," Cockayne, i. p. 365. 



TREATMENT OF THE INSANE 79 

wolf's and lion's flesh,' and as our Saxon forefathers were 
skilled herbalists, we find the clovewort, polion, and 
peony recommended,' also the mandrake, round which 
many stories were woven from its resemblance to the 
human form. They said : " For witlessness, that is, 
for devil sickness or demoniacal possession, take from 
the body of the same wort mandrake by weight of three 
pennies, administer to drink in warm water as he may 
find convenient ; soon he wUl be healed." ' 

Doubtless in all civilisations the more acutely insane 
would have to be a care for the community. * The early 
Christians tended them in their churches, in which they 
stood in a special part," and where they were provided 
with food " while they abode in the church, which, it 
seems, was the chief place of their residence and habi- 
tation." ' 

The monks to some extent looked after them in their 
monasteries.' But whatever medicines or other remedies 
they may have employed, the main idea of those days 
about lunacy was that it came through demoniacal 
possession. The object was to drive the devils out. 
To accomplish this they seem to have resorted to all 
sorts of incongruous " cures," both ghostly and physical.' 
The great spiritual weapon has always been exorcism. 
This was the primal art of all religions, and it was practised 
also by the early Christians. 

In the third century the exorcists were formed into 
a special order.' " When an exorcist is ordained," we 
read, " he shall receive at the hands of the bishop a book 
wherein the forms of exorcism are written. These forms 
were certain passages together with adjurations in the 
name of Christ commanding the unclean spirit to depart 

* Oswald CocksLyne, Leechdoms, Wort Cunning, and Starcraft.pp. 361, 
365. London, 1864. 

" Cockayne, pp. loi, 161, 169. 
' Cockajoie, i. p. 249. 

* Tylor, Primitive Culture, ii. p. 127. 

" Joseph Bingham, Antiquities of the Christian Church, i. p. 322. 

" Bingham, p. 323. 

"< F. A. Gasquet, Henry VIII. and the English Monasteries, p. 463. 

» There were, says Maury, " de v6ritables litanies d'anthdmes centre 
Satan." — La Magie, p. 319. 

» J. Bingham, Antiquities of the Christian Church, i. p. 321. See also 
Paul Verdun, Le Viable dans la vie des saints, p. 2 ; Ency. Brit, ninth 
ed. vol. viii. p. 806. 



80 A HISTORY OF PENAL METHODS 

out of the possessed person." This custom has con- 
tinued through the centuries,' forming the subject of 
innumerable legends and pictures relating to saints and 
teachers in the Middle Ages ; and though the practice 
seems to be in abeyance,' the old idea of exorcism is not 
dead. We must perceive this when we read,' for instance, 
" Water and salt are exorcised by the priest, and so 
withdrawn from the power of Satan, ^ who, since the 
Fall, has corrupted and abused even inanimate things.' 
But besides the weapons, mystic and spiritual, employed 
by the Church, were others of a more corporeal character. 

The patients were bound to venerated crosses at 
evening, to be released as cured in the morning.' They 
were chained fast to stones in various churches ; they 
were dipped into holy wells — this custom lasted in Cornwall 
to modern times ; and they were sent as pilgrims to 
shrines,' at some of which they underwent a regular 
course of treatment ; music was often an important 
element.' And remedies far more drastic might be 
provided, which relied not so much upon the power of 
the saints as on the human weakness of the devils. 

Thus, scattered among the recipes for herbs and all 
the indescribable filthy mixtures which were advo- 
cated for insanity,' we come across the following prescrip- 
tion, the effects of which would prove anything but 
imaginary : — " In case a man be a lunatic, take skin 

1 " The so-called Fourth Council of Carthage (anno 396) prescribes 
a form for the ordination of exorcists tlie same in substance as that 
given in the Roman Pontifical, and used at this day." — Addis and 
Arnold, Catholic Dictionary, art. " Exorcism." London, 1903. 

A man who was said to have been possessed by seven devils was 
exorcised by seven clergymen at the Temple Church, Bristol, in 1788. 
— Tylor, Primitive Culture, ii. p. 128. See also L. A. Maury, La Magie, 
p. 331. 

2 Already in the fifth century Pope Innocent I. forbade the exorcists 
from exercising their ministry without the express permission of the 
bishop, and that order is in force. See also Louis Duchesne, Christian 
Worship, M. L. Maclure's trans, p. 349. London, 1904. 

' Addis and Arnold, Cath. Diet. p. 444. 

* Or this prayer of Pope Leo XIII. : " S. Michael Archange . . . 
repoussez en enfer par la vertu divine Satan, et les autres esprits 
mauvais, qui errent dans le monde cherchant des ftmea 4 perdre." 
Quoted by P. Verdun, ii. p. 314. 

" D. H. Tuke, Hist. Insane, p. 14. 

* F. Beach, Psychology in John Hunter's Time, p. 2. 
' L. A. Maury, La Magie. p. 329. 

* Cockayne, Leechdoms, ii. bk. iii, p. 335. 



TREATMENT OF THE INSANE 81 

of a mereswine or porpoise, work it into a whip, swinge 
the man well therewith, soon he will be well. Amen." 
At one monastery the lunatics in the charge of the monks 
are said to have received ten lashes every day.' 

The insane have been flogged for various reasons : — 
(i) Superstitiously, to drive out the devil, and even to 
scare away a disease ; (2) therapeutically, because pain 
and shock would often subdue the ravings of the patients, 
although only temporarily ; (3) instinctively, as a relief 
to their keepers' feelings. The medical and the brutal 
whippings we shall meet again later on, long after devil- 
driving had been abandoned, though it prevailed through 
Christendom for probably over sixteen hundred years. 
To understand it we must turn aside to savages. 

Primitive peoples," like children, personified every- 
thing. Disease appeared to be a sort of personal entity — 
like that deceitful dream ' Zeus sent to Agamemnon — 
" thing" "to be drawn out in an invisible form, and 
burnt in the fire or thrown into the water." A foe 
invisible, but yet so human in its limitations as to be 
stopped by thorns placed in its path.* And if all manner 
of physical ailments were looked upon as being, or, at 
any rate, as emanating from personal demons, much 
more would such a fearful and mysterious affliction as 
insanity be held to indicate a devil's presence and im- 
mediate handiwork.* Moreover, to the primitive mind 
the demons of all sorts were much too near, too vividly 
conceived, too real, too commonplace, to be regarded 
as spiritual beings within the modem meaning of the 
word. They were conceived as obviously living and 
moving about,' and therefore as being human in their 

1 W. A. F. Browne, What Asylums were, are, and ought to be, p. loi. 

Edinburgh, 1837. 

s See Tylor, Primitive Culture, i. p. 258. 

R. Routledge, Hist. Science, p. 5. London, 1881 

Edward Carpenter, The Art of Creation, p. 36. London, 1904, 

' It may be interesting to compare i Kings xxii. 20. John Lubbock 

(Lord Avebury), Origin of Civilization, p. 32. London, 1889. 

* Certain savages mentioned by Tylor endeavoured to stay the 
progress of small-pox germs after this fashion. — Primitive Culture, 
ii. p. 115. . .... 

' See, for instance, Abbot Richalmus, Liber revelationum de msidtts 
et versutiis daemonum inversus homines. 

• " . . . but as I knew it was the Devil," wrote Luther, I paid no 
attention to him and went to sleep." 



82 A HISTORY OF PENAL METHODS 

character. Thus among savages " the souls of the dead 
are thought susceptible of being beaten, hurt, and driven 
like any other living creatures," ^ and demons could be 
hunted out of the houses and scared away to woods and 
outer darkness.^ 

The ideas of the profoundly superstitious Middle 
Ages resembled these. Even the great opponent or 
accuser, Satan, who was restored by Milton to the role 
of Ahriman,' was but a wretched creature, a poor devil,* 
in the popular imagination. " He " is continually out- 
witted like the pantomime policeman," and nonplussed 
by the shallowest equivocations.^ He beats a man,' 
and is beaten and vanquished.' He aims a stone at 
Dunstan and misses,' and when seized by the nose with 
pincers, his bellowings are heard for three miles round." 
He howls when sprinkled with holy water," and Luther 
hurls an inkstand at his head.'* This man-like and 
material monster of course felt pain, and when he took 
up his abode in a human body he was supposed to feel 
the blows inflicted on the sufferer." It was the devil 
(or his representative) who might be driven out of man 
or woman ; the demons could be commanded to quit 
each portion of the invaded body, member by member." 
The fiends were supposed to writhe in anguish '^ when 

•^ Primitive Culture, i. p. 409. 

2 E. B. Tylor, Ency. Brit, ninth ed vol. vii. p. 63, etc. 

3 Cheyneand Black, Ency. Bib. art. " Satan," by Gray and Massie. 
F. T. Hall, The Pedigree of the Devil. London, 1883. 

J. TuUoch in Ency. Brit, ninth ed. art. " Devil." 

* Satan, said TertuUian, is God's ape. He was indeed supposed 
to possess a tail ; this might be severed, but it would grow again. 

' A. Reville, The Devil, pp. 40, 42. London, 1871. 

' L. W. Cushman, The Devil and the Vice. London, 1897. 

' Tylor, Primitive Culture, p. yy. 

* P. Verdun, Le Diable dans la vie des saints, p. 97. 

^ S. Baring Gould, Lives of the Saints, v. p. 278. London, 1897. 

'" P. Carus, The History of the Devil, pp. 255, 256. London, 1900. 

*' John Ashton, The Devil in Britain and America, -p. 87. London, 
1896. 

12 Carus, The History of the Devil, p. 343. 

•3 R. Burton, Anatomy of Melancholy, Pt. i. sec. ii. p. 57, ed. 1806. 

1* Maury, La Magie, p. 310. 

'^ The same idea is found among many savages. In a certain 
tribe referred to by Dr. Tylor, " The dancing of women by demoniacal 
possession is treated ... by the doctor thrashing them soundly with 
a stick — the demon, and not the patient, being considered to feel the 
blows." — Primitive Culture, ii. p. 124. 



TREATMENT OF THE INSANE 83 

the possessed cowered beneath salt water or the whip.' 
On them the curses and the stripes were meant to des- 
cend,' until at last, through unendurable totments, they 
fled the body by the nearest orifice.' 

This crude and savage way of expelling " devils " 
was long continued ; belief in it is probably by no means 
dead in the minds of some country-folk. Hawthorne, 
writing of the seventeenth-century Puritans,* makes the 
gaoler say of his prisoner, " Verily she hath been like a 
possessed one, and there lacks but little that I should 
take in hand to drive Satan out of her with stripes." 
But there were times enough when exorcism failed and 
flogging proved unavailing. Then the insane would have 
to be restrained and subjected to some sort of treatment ' 
— to say some sort of ill-treatment were nearer the truth. 
Doubtless they always aimed at quieting the more 
troublesome patients, and bringing them into order, 
if not back to reason. 

Says Andrew Boorde in his strange Regyment of 
Health : • " I do advertyse every ma the which is mad 
or lunaticke or frenticke or demoniacke, to be kept in 
save garde in some close house or chambre where there 
is lytell lyght. And that he have a keper the which the 
mad man do feare." The same idea we see expressed 
by Shakespeare : ' " We'll have him in a dark room and 
bound," is the immediate cry towards the mad. Shut 
up and bound they were, in all manner of ways and 
places, by relatives, monks, and keepers. As we have 
seen, many were executed as witches or malefactors, 
and would be thrown into gatehouses and prisons,' where 
they might furnish horrible diversion for the other 

' See, for instance. Abbot Richalmus, caput xxvi., De efficacia 
salts et aquae. 

2 D. H. Tuke, History of the Insane^ p. 21. 

3 In many ancient drawings they are depicted blown from the 
mouth, little black monsters mingled in a cloud; there were other 
manners of egress. 

* The Scarlet Letter, chap. iv. 

5 The people of those early days, says Maury, " bien qu'attnbuant 
la foUe k une cause imaginaire n'en avaient pas moins connu que 
c'etait une veritable maladie." — La Magie, p. 309. 

• Chap, xxxvii. London, 1542. 
' Twelfth Night, Act iii. Sc. 4. 

« W. Besant, London in the Eighteenth Century, p. 536. 



84 A HISTORY OF PENAL METHODS 

prisoners," and where they were sometimes drugged to 
make them silent and to cease from raving.' Sometimes 
they were placed in such hospitals as there were,' along 
with fever and accident cases.* 

In the course of time, as population spread and town- 
ships grew, the old resorts were found to be inadequate. 
The number of the lunatics was increasing, and the 
whole country was filling up and enclosing. Whipping 
from place to place became ineffective, and there had 
been no public institutions available but monasteries, 
gaols, and hospitals." In the year 1247 was founded 
by Bishopsgate the Priory of St. Mary of Bethlem," 
and here insane people were kept and tended, at any 
rate from 1403. Doubtless there came to be other 
places thus put to use, such as, for instance, one St. 
Katherine's by the Tower,' where, we are told, " they 
used to keep the better sort of mad folks." But it was 
not until about the middle of the eighteenth century ' 
that grim and sombre circumvallate buildings began to 
be erected to intern the troublesome." " They were," 
says Dr. ConoUy," " but prisons of the worst description. 
Small openings in the walls, unglazed, or whether glazed 
or not, guarded with strong iron bars, narrow corridors, 
dark cells, desolate courts, where no tree nor shrub nor 
flower nor blade of grass grew." Solitariness, or com- 
panionship so indiscriminate as to be worse than soli- 
tude ; terrible attendants armed with whips . . . and free 
to impose manacles and chains and stripes at their own 
brutal will ; uncleanness, semi-starvation, the garrotte, 
and unpunished murders — these were the characteristics 

1 W. E. H. Lecky, History of England in the Eighteenth Century, 
vi. p. 257. London, 1887. 

2 Andrew Halliday, Lunatic Asylums, p. 10. London, 1828. 
^ W. A. F. Browne, What Asylums were, p. loj. 

* J. Conolly, Treatment of the Insane, p. 7. 

•5 See J. E. D. Esquirol, Mimoire sur la Maison Royale de Charenton, 
p. 10. 

» D. H. Tuke, Hist. p. 52. 

' W. Besant, London in the Time of the Stuarts, p. 237. 

• J. B. Tuke, art. " Insanity," Ency. Brit, nintti ed. 

9 Many asylums were built under the Act of 1808, but before that 
the pauper patients had been "crowded into the damp dungeons of 
our public workhouses, or shut up in houses of detention and ill-regu- 
lated prisons." — A. Halliday, Lunatic Asylums, p. 10. 

1° Treatment of the Insane. 

1' Oscar Wilde, Ballad of Reading Gaol, p. 24. 



TREATMENT OF THE INSANE 85 

of such buildings throughout Europe." What may be 
called the theoretical treatment was bad enough. Those 
who could not be cured must be subdued ; ' the 
teaching of Boerhaave and Cullen admitted this, and 
the latter wrote: "Fear being the passion that 
diminishes excitement, may therefore be opposed to the 
excess of it, and particularly to the angry and irascible 
excitement of maniacs ; these being more susceptible 
of fear than might be expected, it appears to me to have 
been commonly useful." ' 

It was desired " to acquire some awe over them," ' 
and he declares that ' sometimes it may be necessary 
to acquire it even by stripes and blows." * This w^as the 
therapeutic flogging already alluded to." Shock, terror, 
blistering, bleeding, purging, the use of chains and all 
manner of manacles *-these were the means employed 
and set down in the textbooks to heal the disordered 
mechanism of the brain.' 

In the Gentleman's Magazine of 1765 ' we read of the 
private asylums that " persons were taken forcibly to 
these houses without any authority, instantly seized by 
a set of inhuman ruffians trained up to this barbarous 
profession, stripped naked, and conveyed to a dark room." 
So ignorant were the doctors of those days as to the nature 
of insanity that the harsh cruelties practised on private 
patients were carried out even upon the king. Of the 
eighteenth-century practice Mr. Massie has written : ' 

' Robert Jones, An Inquiry into the Nature of Nervous Fevers. 
London, 1785. 

a W. Cullen, First Lines of the Practice of Physic, iv. p. 153. Edin- 
burgh, 1789. 

2 CuUen, p. 171. 

• Ibid. p. 154 

See also R. Mead, Monita et praecepta medica, p. 67 ; he says, how- 
ever, that fast binding is sufficient. London, 1751. 

' Page 81, ante. Dr. Haslam flogged lunatics at stated periods to 
avert outbreaks. — ConoUy, p. 12. 

• D. H. Tuke, Hist. p. 107. F. Beach, Psychological Medicine. He 
also alludes to John Wesley's Prescriptions, p. 6, etc. Andrew Wynter, 
The Borderland of Insanity, J. M. Granville's ed. p. 70. London, 1877. 

^ " The vagrant action of the limbs was suppressed, but the source 
of irritation in the brain was left out of consideration." — Conolly. 

• Quoted by Beach, Hunterian Oration, 1891. 

» W. Massie, A History of England during the Reign of George III., 
iii. p. 207. London, 1865. 

See also J. M. D. Meiklejohn, Hist. Eng. Pt. ii. p. 330. 



86 A HISTORY OF PENAL METHODS 

" Mental disease was at that time a branch of art little 
understood, and the specific treatment of lunatics was 
worthy of the barbarous age of medicine. The unhappy 
patient " (King George III.) " upon whom this most 
terrible visitation of Heaven had fallen, was no longer 
dealt with as a human being. His body was immedi- 
ately enclosed in a machine, which left it no liberty of 
motion. He was sometimes chained to a staple. He 
was frequently beaten and starved, and at least he 
was kept in subjection by menacing and violent 
language." That, like most lunatics, he was very 
annoying is certain ; he once taljied for nineteen hours 
unceasing. But all his troubles were intensified by ill- 
treatment ; ' they left hun to be knocked about by a 
German servant,^ and the first doctors kept him even 
from his own children, at which the poor old man com- 
plained " very heavily." ' Such, then, was the orthodox 
treatment applied against the highest in the land. But 
the worst deeds were done behind thick walls. " Sane 
people," says Beach,* writing of private establishmerlts, 
" were frequently confined in these asylums, for persons 
frequently availed themselves of the facilities * then in 
use in order to get rid of a troublesome relative or to 
obtain some selfish object." 

And what of the really mad ? ° — irritable, violent, 
irrational, helpless, often with as little control over the 
functions of the body as on the workings of the mind. 
We can imagine what their state became when left in 
the hands of ignorant practitioners and brutal attendants, 
with chains and instruments of restraint convenient and 
ready. Screened off from all kith and kin, they writhed 
with sores and rotted in ordure.' Sometimes — mostly on 
Monday mornings after the Sabbath rest and accumu- 

I Massie, Hist. p. 208. 

' Wynter, Insanity, p. 80. 

' J. H. Jesse, Memoirs of the Life of George III., iii. pp. 95 and 274. 
Later on he was placed in the better care of Dr. Willis, a clergyman 
who was much celebrated for his management of mad people ; see 
Jesse, iii. p. 90, etc. 

* Hunterian Oration, p. 5. 

5 Besant, London in the Eighteenth Century, p. 377. See also Charles 
Reade's book, Hard Cash. 

" See Conolly's description of the old-time reception of a private 
patient. — Treatment of the Insame, p. 138. 

T D. H Tuke, Hist, p. 171; 



TREATMENT OF THE INSANE 87 

lations — they might be carried out into a yard ^ to be 
mopped and soused from pails in the coldest weather." 

The condition of the living-rooms and wards » was 
often such that visitors grew physically sick from going 
into them ; * but they were rare within those private 
prisons," strangers are never welcome behind the walls. 
At York Asylimi/ — an especial plague spot opened 
in 1777, and burnt,' it is said, to avoid disclosures that 
might hang its keepers,' in 1814 — a rule was adopted 
in 1813 " that no person ° shall be allowed to visit any of 
the patients without a special written order signed 
by the physitian." Official visitors were generally 
harmless.'" At York the worst rooms were not shown 
them." For most of the small asylums there were none 
at all.'= 

Even the larger public asylums during the eighteenth, 
and also far into the nineteenth century, were horrible 
monuments of cruelty and neglect. The miserable patients 
lay upon straw in cells," or upon wooden shelves to which 
they were fastened. Many were naked or decked over 
with one blanket.'* In the wards they were frequently 
chained to the wall by wrist or ankle,'" and occasionally 
by both. One patient at Bethlem," a fierce, powerful 
man whose name was N orris, after a fracas with a drunken 
keeper, had his arms and shoulders encased in a frame 

1 D. H. Tuke, Hist. p. 171. 

2 R. Gardner Hill, Lunacy ; its Past and its Present, p. 7. London, 
1870. 

» Ibid. p. 6. 

* J. B. Sharpe, Report and Minutes of Evidence on the Madhouses 
of England; evidence of G. Higgins, pp. 12 and 13 ; of R. Fowler, 
p. 308; and of H. Alabaster, p. 326. London, 18 15. 

' Edinburgh Review, xxviii. p. 445. Edinburgh, 1817. 

» Jonathan Gray, History of York Asylum, p. 12. York, 1815. 

' See ConoUy's amazing denunciation in his Treatment of the Insane. 

• A female patient was got with child by the head keeper ; he was 
subsequently given a piece of plate, and kept a, private madhouse of 
his own ; see Sharpe, Report and Min. of Ev. p. 14. 

' Gray, chap. iv. ; ibid. p. 26 ; Beach, p. 4. 

1° S. W. NicoU, An Enquiry into the Present State and Visitation of 
Asylums, p. 10, etc. London, 1828. 
" Sharpe, p. 12 ; Gray, p. 23. 

" Sharpe, Report and Min. of Ev. pp. 277, 290, 297. 
" Ibid. p. 46 

'* For instance, at Bethnal Green Asylum. — Beach, p. 12. 
" As late as 1837.— Tuke, Hist. p. 81. 
18 Sharpe, p. 46. 



88 A HISTORY OF PENAL METHODS 

of iron obtained from Newgate.' This instrument ^ was 
attached by a twelve-inch chain to a collar round his 
neck, from a ring round a vertical iron bar which had 
been built into the wall by the head of his bed.' His 
right leg was secured to the frame upon which he lay. 
The effect was that the^patient could move up and down 
as far as the ring and short chain round the upright 
bar permitted, but he could not stir one foot from the 
wall, and could only rest lying upon his back. " In 
this thraldom," says Dr. ConoUy,* " he had lived for 
twelve years. During much of this time he is reported 
to have been rational in his conversation. At length 
relief came, which he only lived about a year to enjoy. 
It is painful to add that this long-continued punishment 
had the recorded approbation of all the authorities of 
the hospital. Nothing can more forcibly illustrate the 
hardening effect of being habitual witnesses of cruelty, 
and the process which the heart of man undergoes when 
allowed to exercise irresponsible power." 

The medical men were poorly paid and proportionately 
neglectful. At the time of which we are speaking — the 
end of the eighteenth and the beginning of the nineteenth 
century — the physician at Bedlam got only £ioo a year.' 
However, he kept a private asylum, and sometimes 
left the public institution for months together." One 
of the surgeons is described as having been " generally 
insane and mostly drunk," in spite of which he was 
retained there for ten years.' 

With such shameful neglect and callousness on the part 
of the doctors — there appear to have been no chaplains 
in those days * — it is not to be wondered that the unhappy 
patients fell entirely into the hands of the keepers and 
immediate attendants, and most of these were quite 
ignorant people, rendered impatient and brutal by the 
exasperating ways of the demented inmates, and by 

' Sharpe, p. 85. 
2 Ibid. p. 48. 

' See Besant, London in the Eighteenth Century, where a print is 
given of this prisoner in his cell at p. 375. 

* Treatment of the Insane, p. 28. 

^ Sharpe, Report and Min. of Ev. p. 120. 

* Ibid. p. 59. 

' Tuke, Hist. p. 153. 

* Sharpe, Report and Min. of Ev. ^p 68. 



TREATMENT OF THE INSANE 89 

their boundless power over them. Instinctive and re- 
taliative floggings (the third kind, alluded to on p. 8i), 
assaults, and possibly even murders, were not uncommon, 
as well as the distressing and unlimited restraints already 
referred to.' One doctor invented and introduced a 
special instrument to prise open the patients' mouths at 
compulsory feeding. He mentions that, by the usual 
process, teeth were apt to be broken, and some were 
left " without a front tooth in either jaw." ^ 

In the eighteenth century ' — up to 1770 — and in some 
places, doubtless, even to later times, the mad people 
were reckoned among the " sights."* The public paid ' 
to go round the asylums, as they do now to gaze upon 
wild beasts.* The baser and more mischievous among 
them would irritate and purposely enrage the secured 
patients, as their descendants tease caged animals to 
this day ; ' and thus reproduced for their ghastly diver- 
sion " exhibitions of madness which are no longer to 
be found, because they were not the simple product of 
malady, but of malady aggravated by mismanagement." 

Such conduct appears to have been general in those 
times.' At Geneva " some lunatics would be given grass 
and horrible things to eat to amuse visitors. This also 
happened at the BicStre," in certain parts of Germany, 
etc." " Les Fous de Charenton " became, for a time, 
notorious for their plays,'^ which were presented with 

1 For an account of some of these, especially as used in Portugal 
into later times, see G. A. Tucker, Lunacy in Many Lands, pp. i6, 
1346, etc. Sydney, 1887. 

2 John Haslam, Observations on Madness, p. 317. London, 1809. 

3 Besant, London in the Eighteenth Century, p. 377. There is also 
a reproduction of Hogarth's " Scene in Bedlam " from " The Rake's 
Progress." 

* R Gardner Hill, A Concise History of the Non-Restraint System, 
p. 139. London, 1857. 

^ W. A. F. Browne, p. 119. 

° One large asylum is said to have made ^£400 a year from exhibiting 
lunatics, but this would probably not include the keepers' tips ; see 
Tuke, Hist. p. 7i. 

7 Conolly, p. 33. See also P. Pinel, Traiti Midico-philosophique 
sur I'Alidnation Mentale, p. 65. Paris, An. IX. 

J. B. Tuke, Ency. Brit, ninth ed. vol. xiii. p. 1 1 1. 

^ See E. Westermarck, Moral Ideas, i. p. 274. 

» H. W. Carter, Principal Hospitals, p. 42. London, 1819. 

" P. Pinel, Traits, p. 64. 

i» A. HaJliday, Lunatic Asylums, p. 76. 

" J. E. D. Esquirol, Mimoire de Charenton, pp. 46, 48. 



90 A HISTORY OF PENAL METHODS 

much sound and fury, attracting spectators from very 
grotesqueness. They were forbidden in 1811. 

High walls kept things dark for years, but the light 
stole through in the end, as it always will.^ In 1793 
Pinel removed the chains from patients in the Bicgtre. 
At home, the York Asylum, already alluded to, began 
to bear an evil reputation. In 1788 it incurred the 
Animadversions ' of the Rev. William Mason.' In the 
year 1791 some friends of a female patient desired to 
visit her, but were not allowed, upon the plea that she 
was not in a suitable condition to be seen by strangers 
(she probably was not !). A few weeks after this she was 
reported dead.* The woman belonged to the Society 
of Friends, and the suspicious circumstances of her va- 
carceration caused much resentment among the Quakers. 
Soon after, William Tuke resolved that they should have 
a hospital of their own. The Retreat was started in the 
year 1792, and its humane and enlightened methods 
were soon contrasted with the barbarous and secret 
administration prevailing at the older institution. But 
the years rolled by while patients languished and died. It 
was in 1813 that Samuel Tuke — a grandson of the founder 
of the Retreat — brought out a little work ' describing the 
system there. It " excited universal interest, and, in fact, 
achieved what all the talents and public spirit of Mason 
and his friends had failed to accomplish. It had still 
better effects. A very inoffensive passage in this book 
roused, it seems, the animosity of the physician to York 
Lunatic Asylum, and a letter which this gentleman pub- 
lished in one of the York newspapers ' became the origin 

1 F. Beach, p. ii. J. Conolly, p. lo. R. Gardner Hill, Concise 
Hist. p. 141. 

2 Animadversions on the Present Government of York Asylum. York, 
1788. It deals mainly with the question of finance. 

Edinburgh Review, vol. xxviii. p. 433. 

These produced A Letter from a Subscriber to the York Lunatic Asylum. 
York, 1788, etc. 

' He died in 1797, and an inscription was erected to him in West- 
minster Abbey. See Diet. Nat. Biog., and Jonathan Gray, History of 
York Asylum, p. 18. 

* Samuel Tuke, Description of the Retreat, p. 22. York, 1813. 

5 The Description of the Retreat near York, already alluded to. 

« To the York Herald, dated September 23, 1813. It was signed 
merely " Evigilator," but had been written by Dr. Best, the head of 
the York Asylum. 

See J. Gray, Hist. p. 28 ; also D. H. Tuke, Hist. pp. 129, 148. 



TREATMENT OF THE INSANE 91 

of a controversy among the governors of that establish- 
ment, " which terminated in August 1814, after a struggle 
of nearly two years, in the complete overthrow of the old 
system, and the dismission of every officer of the asylum, 
except the physician himself." ' 

The conflict was taken up by others and carried on. 
Towards the close of that same year (1813), a case of 
alleged misconduct was brought forward by Mr. Godfrey 
Higgins, a magistrate for the West Riding. " Mr. 
Higgins' statement was read " (before twenty-seven 
governors), " after which the accused servants of the 
house were called in and sworn. They denied upon oath 
the truth of the charges. No other evidence was called 
for ; nor was any minute committed to writing of what 
had been sworn by the servants. The following re- 
solution was passed : — The governors having taken into 
consideration the statements published in the York and 
other newspapers respecting the treatment of William 
Vicars, lately a patient in this asylum, . . . are unanimously 
of opinion that ... he was treated with all possible care, 
attention, and humanity." ' It was of no avail ; thirteen 
gentlemen of the county came forward with donations, 
in virtue of which they qualified as governors. These 
new men brought their votes to bear to force on an 
inquiry, and though the old gang of scoundrels never 
got their deserts, and, to conceal their guilt, are said to 
have set the premises on fire, yet they were driven out of 
their situations, and soon investigation became national. 

In 1814 Mr. George Rose brought in a Bill to regulate 
asylums, which passed the House of Commons. But 
the authorities at Bedlam Opposed the measure,' spending 
over £600 in so doing. They had good cause, as we 
shall see presently. The York Asylum governors — 
nineteen of them, including the archbishop— sent in a 
petition against it ; and the intrepid Mr. Higgins sent 
one in its favour, signed by himself.* The Bill was 
thrown out by the House of Lords,' but a committee 

1 Edinburgh Review, vol. xxviii. p. 433- Edinburgh, 1817. 

2 S. W. Nicoll, An Enquiry, p. 1 1 ; and see Jonathan Gray, Hist. 

p. 31- 

3 D. H. Tuke, Hist. p. 79- 
* J. Gray, Hist. chap. vi. 

s D. H. Tuke, p. 161. 



92 A HISTORY OF PENAL METHODS 

of the House of Commons was then appointed, and 
collected the inconceivable and horrible evidence from 
which we have quoted. Its report was presented by 
Mr. Rose in 1815,' and though the committee at Bedlam 
formally exonerated its ofl&cials for all things they had 
done and neglected to do, including even the dreadful 
instrument placed round Norris,^ the unofficial mind 
of the public had been roused to indignation, and many 
of the worst abuses were presently remedied. 

Mr. Rose died in 1818, but in the following year Mr. 
Wynn brought forward another Bill, which was, however, 
opposed by Lord Eldon, who observed ' that " there 
could not be a more false humanity than over^humanity 
with regard to persons afflicted with insanity," a line 
of argument which we shall come on again. That Bill 
shared the fate of its predecessor. It was not until 
nine years afterwards that Mr. Gordon secured the passing 
of an Act * to improve the asylums, in the year 1828. 
Though abuses continued into the middle of the nine- 
teenth century,' and many Acts of Parliament were 
subsequently brought in,' the monstrous evils of which 
we have spoken continued as crimes where previously 
they had been customs, and took place on a much 
diminished scale. 

At Lincoln Asylum,' about 1838, Dr. Gardner Hill 
removed mechanical restraints, and Dr. ConoUy ' followed 
at Hanwell in the succeeding year. In this they were, 
of course, opposed in the Profession," but new ideas and 
new conceptions were coming, which are still working 
in the treatment of insanity. All along, heretofore, the 
Mind and the Body had been conceived as two separate 
things. People had ceased to believe in the interference 
of devils, but they spoke vaguely of " a mind diseased." 
There often being no physical injury that could be 

I D. H. Tuke, p. 1 57. 

' NicoU, p. 21. 

3 D. H. Tuke, Hist. p. 162. 

* Ibid. p. 173. 

5 J. B. Tuke, Ency. Brit, ninth ed. ; D. H. Tuke, Hist. p. 85 ; R. 
Gardner Hill, Lunacy, p. 5. 

* See, for instance, Hunterian Oration, 1891, etc. 
' R. Gardner Hill, Lunacy, p. 42. 

^ Andrew Vl^ynter, p. loo. 

* Hill, pp. 87, 88. 



TREATMENT OF THE INSANE 93 

detected, " the common opinion seemed to be confirmed 
that it " (mental disorder) " was an incomprehensible, 
and consequently an incurable, malady of the mind." ' 

A medical Avriter ' of the early nineteenth century 
could allude to lectiures he had attended, at which the 
doctor had declared that treatment and physic were 
useless in a case of furor uterinus, because it was a disease 
of the mind, not of the body. No doubt there loomed 
the fear of Free Will and Theology. "... Many very 
able men," says Dr. Halliday,' " led away by what 
appeared to be the general opinion of mankind, shrank 
from a strict investigation of a subject that seemed to 
lead to a doubt of the immateriality of mind, a truth so 
evident to their own feelings and so expressly established 
by divine revelation." It is not for us to turn aside into 
labyrinths, or to attempt to settle what " mind " may 
mean. But we know that, to our present power of 
comprehension, the mind can only function through the 
body. How it first formed, and if it can yet rekindle, 
are vital questions which may never be answered ; 
at any rate they lie beyond our range. 

Gradually metaphysics and moral concepts were 
left behind as experts examined facts. "... Derange- 
ment," says a nineteenth-century writer,* " is no longer 
considered a disease of the understanding, but of the 
centre of the nervous system, upon the unimpaired 
condition of which the exercise of the understanding 
depends. The brain is at fault and not the mind." 

" The old notion," says Dr. Wynter,= " that de- 
rangement of mind may happen without any lesion of 
the instrument of thought being the cause or consequence, 
has long been exploded." 

The physical origin of insanity " became gradually 
accepted. Its mental phenomena were more carefully 
observed, and its relation was established to other mental 
conditions which had not hitherto been regarded as 
insane in the proper sense of the word. . . . Hitherto the 
criteria of insanity had been very rude, and the evidence 

» Halliday, Lunatic Asylums, p. 2. 

a F. Willis, A Treatise on Menial Derangement, p. 6. London, 1823. 

3 Lunatic Asylums, p. 2. 

" W. A. F. Browne, p. 4. 

' Borderland of Insanity, p. 11. 



94 A HISTORY OF PENAL METHODS 

was generally of a loose and popular character ; but 
whenever it was fully recognized that insanity was a 
disease with which physicians who had studied the 
subject were peculiarly conversant, expert evidence 
obtained increased importance, and from that time 
became prominent in every case. The new medical 
views of insanity were thus brought into contact with 
the old narrow conceptions of the law courts, and a 
controversy arose in the field of criminal law, which, 
in England at least, is not yet settled."' 

The instinct of retaliation was not readily restrained 
by reasoning or proofs of irresponsibility. In postulating 
freedom of choice under all physical conditions ; in 
assuming plenary responsibility in men and women under 
all circumstances ; in refusing to recognize any abnormal 
state unless it were so extreme and obvious as to render 
the person before the court unconscious of his actions 
and surroundings, the judges were defending their own 
position. Thus the new theories ' were disputed and 
sneered at, and arbitrary standards as to sanity were 
set up at variance with all facts and expert evidence.' 

Some contended that the more subtle and amazing 
forms of madness or abnormality perceived by the 
specialists were but new names for old perversities.* 
Others averred that nothing physical ought to exculpate. 
Smollett wished that all lunatics guilty of grave offences 
might be subjected " to the common penalties of the law." 
Upon this Mr. Tuke observes in comment that " The 
entire inability to distinguish between voluntary and 
involuntary acts, . . . between motives and consequences, 
is singularly weU shown. Unfortunately it was not 
peculiar to Smollett." ' 

' Alexander Gibson, in Ency. Brit, ninth ed. art. " Insanity (Law)." 

2 " That " [kleptomania] " is one of the diseases I was sent here to 
cure," a certain judge is said to have observed ; but he did not cure it. 

3 One of these legal tests had been a knowledge of the multiplication 
table. — W. A. F. Browne, p. 3. 

* The "robust" attitude has been shown by Dickens. "That 
young Pitcher's had a fever." " No I " exclaimed Mr. Squeers. 
" Damn that boy, he's always at something of that sort." " Never 
was such a boy, I do believe," said Mrs. Squeers ; " whatever he has 
is always catching too. I say it's obstinacy, and nothing shall ever 
convince me that it isn't. I'd beat it out of him." — Nicholas Nickleby, 
chap. vii. 

s D. H. Tuke, Hist. p. 96. 



TREATMENT OF THE INSANE 95 

And I might add that this instinctive feeling con- 
tinued — as everything instinctive generally does. Turn- 
ing to the work of a writer still living (in 1908), we come 
upon the following : "Of late years a certain school of 
thinkers ' . . . have started some theories respecting 
the responsibility of many dangerous criminals and 
murderers, which have very properly been objected to 
by more practical observers." And the writer continues 
with all the sweet simplicity of ignorance : " Even the 
inmates of lunatic asylums know well the distinction 
between right and wrong. And it is precisely upon this 
knowledge that the government and discipline of such 
establishments are based. Hence no theories of criminal 
irresponsibility should be permitted to relax the security 
and strictness of the detention of dangerous offenders, 
whether sane, or partially insane, or wholly mad. And 
it is important to observe that the treatment and con- 
dition even of mad murderers should not be made 
attractive to others outside." But the hard scientific 
facts persisted. Injustice and cruelty, practised upon 
the weak and helpless, do not, alas ! and pace good Mrs. 
Stowe, bring down upon nations the visible wrath of God ; 
but the manifest falseness of the old assumptions, and 
the continued failure of the mediaeval methods, could not 
be hidden through unending years. Slowly the light of 
science began to penetrate into the dark places of punish- 
ment. The entirely mad were first rescued and treated 
as patients, and these now, happily, no longer concern 
us ; their case belongs to Medicine, not to Criminology. 
With regard to the half-mad we are in a state of slow 
change and transition. Their wrongs, long known to 
the alienists, are being brought before the law-makers. 
" Crime," says the Report of Mr. Secretary Gladstone's 
Committee,' " its causes and treatment, has been the 
subject of much profound and scientific inquiry. Many 
of the problems it presents are practically at the present 
time insoluble. It may be true that some criminals are 
irreclaimable, just as some diseases are incurable, and 
in such cases it is not unreasonable to acquiesce in the 

» W. Tallack, Penological and Preventive Principles, pp. 249, 250. 
London, 1896. 
" Departmental Committee on Prisons Report, p. 8. London, 1895. 



96 A HISTORY OF PENAL METHODS 

theory that criminality is a disease and the result of 
physical imperfection. But criminal anthropology as a 
science is in an embryo stage. ..." With regard to 
the abnormal we are only on the threshold of justice ; a 
multitude of causes, theological and instinctive, prevent 
the facts from being faced and known. 

We may take comfort in the course of evolution ; in 
that the violently mad (employing the word in a wide 
and general sense) are no longer exorcised and tormented ; 
in that the eccentrically mad are no longer burned and 
tortured for what was imagined against them ; in that 
the weak-minded and the partially deranged are being 
considered, with a view to their segregation in specid 
places apart from healthy offenders ; in that innate and 
absolute abnormality of emotions has been established 
by the specialists upon overwhelming evidence ; and 
that the knowledge of this is quietly spreading, and 
being recognised and admitted among educated people 
throughout the civilized world. 



CHAPTER IV 

BANISHMENT 

There was a time when the whole expanse of this great 
island upon which we live stood out unspoiled and 
beautiful, much as Nature made it. The tides swept up 
their channels as they do now, and the waves tumbled 
and hissed along sand and shingle, as they lap round 
the shore to-day. The estuaries were not then con- 
taminated with sewage, the great rivers had not become 
opalescent with oU, and the rapid streams were not 
coloured with chemicals. The roads were not disfigured 
by telegraph poles and the commons were not vulgarised 
with the garish gas lamps. The moon and the stars gave 
light, and the hours of darkness peace over the world. 
Encircling all the towns and villages, as the great sea 
encompasses its atolls, the forest stretched unbroken, 
far and wide. The brown bear shambled through the 
fastnesses of the hills, the shy wolf was abroad at night, 
alert for his prey, and the wild boar, afraid of nothing, 
rooted about under oaks and beeches. Huge herds of 
wandering deer grazed over the pastures, and innumer- 
able rabbits scampered among the dells. But the forest 
concealed men, too-wild youths who ill bore elders' 
discipline ; brigands descended from the savage invaders ; 
homicides escaping from blood-revenge, thieves and 
affrighted theows who could not pay fines, and men of 
all sorts whom the tribe had banished. For the outlaws 
were the ancestors of the convicts, and the wilderness 
was the first penal colony. But it was banishment to 
nature, not to degradation ; once outside organized 
communities " the world was all before them where to 
choose," and there was room enough in those distant 
days, for up to the fourth century the population of 

7 97 



98 A HISTORY OF PENAL METHODS 

Britain was under a million,' and for another thousand 
years, and longer, it totalled less than half the multitude 
of people who live within our present capital.^ There 
must have been real joyousness in the outlaw's life, be- 
neath the green wood in the summer time ; there were 
so many bands of them,' and the forest folk would tend 
to fraternise with each other, being made sympathetic 
from common fear, as our outcasts are in the slums of 
cities to-day. The chase was real hunting then, not a walk 
among poultry, and the poachers could sport like kings. 
Withal, they had to pay heavily for their freedom ; 
their chattels, as those of felons, had been forfeited to the 
king ; * their land was his for a year and a day, and then 
went to the over-lords of whom they were tenants, and 
they were houseless and homeless through all the bitter 
months of the northern winter. Well might the out- 
lawed lover say to his would-be waive : ' 

" Yet take good hede for euer I drede 

That ye coude not sustein 
The thorney wayes the depe valeis. 

The snowe, the frost, the reyn. 
The cold, the hete, for drye or wete 

We must lodge on the playn 
And us aboue noon other roue 

But a brake bussh, or twayne. 
Which sone shulde greue you I beleve. 

And ye wolde gladly than. 
That I had too the grene wode goo. 

Alone a banyshyd man." 

And again : 

" I councel yow remembre hou 
It is noo maydens lawe 
Nothing to dowte but to renne out 

To wod with an outlawe : 
For ye must there in your hende bere 

A bowe redy to drawe 
And as a theef thus must ye lyue 
Euer in drede and awe." 
' Meiklejohn, Hist, i 14. 

' The population in the reign of Henry VII. was about 3,000,000. 
" The two cities of London and Westminster had about 60,000 in- 
habitants between them, and they were joined by a country road lined 
with trees." — Ibid. ii. 288. 

3 See, for instance, the tales about Robin Hood and his men and the 
adventures of Queen Margaret. 
* See Stephen, H. C. L. i. p. 472. 

Holdsworth, Hist. E. L. iii. p. 62. 
» The " Nut Brown Maid" (circa a.d. i 500) in W. W. Skeat's Specimens 
of English Literature, 4th ed. Oxford, 1887. 



BANISHMENT 99 

It was indeed a life of danger and romance for the 
strongest man, and a hard, rough place for any woman, 
even though she " cut her hair up by her ear and her 
kirtle at the knee," as the poem says.' For all those 
who had been outlawed thenceforth would » hold their 
lives like the animals, and all men might kill them, at 
any rate if they showed fight or resisted capture,' and 
their children were outlaws too.' 

Strictly speaking, an outlaw could only be reinstated 
through the king's pardon,' and even that did not give 
back the forfeitures. Sometimes the sovereign tried to 
make soldiers of them, as for instance when, in 1324, 
Edward II. issued a proclamation at Nottingham offering 
to receive and pardon outlaws and felons ° who would 
fight for him in Gascony. Doubtless there were multi- 
tudinous ways by which the banished people betook 
themselves, for though the agricultural life of the hamlets 
was more or less stagnant and intensely parochial, yet it 
was probably more easy to disappear then than now. 
The wandering population was very large — indeed one 
eminent authority has remarked, " There was much 
less journeying for mere pleasure's sake, but very much 
more, comparatively, out of necessity." ' 

Along the roads went traders with pack-horses, journey- 
ing with their merchandise ; pedlars carrying their small 

' At first the bare fact of flight appears to have constituted the 
evader an outlaw; later on, however, he was proclaimed and sum- 
moned in the neighbouring counties and was allowed five months 
in which to appear. — Stephen, Hist. C. L. i. pp. 468, 469. 

* " . . Utlagatus et weyviata capita gerunt lupina, quae ab 
omnibus impune poterunt amputari ; merito enim sine lege perire 
debent, qui secundum legem vivere recusant." — Fleta. J. Selden's ed. 
lib. i. p. 41. London, 1647. 

' Stephen, H. C. L. i. 472. 

* At first all the offspring were dragged down into outlawry, but 
in later times only those bom after their parents' banishment were 
held to become involved. See Westermarck, Moral Ideas, i. 46 ; 
Leges Edwardi Confessoris, 19, in Thorpe, fol. ed. p. 194 ; Thrupp, Anglo- 
Sax. Home, pp. 116, 145. 

' Stephen, Hist. C. L. 1. p. 472. 

* F. Palgrave, Parliamentary Writs, vol. ii. p. 690. London, 1830. 

All through the centuries criminals have been pardoned upon con- 
dition that they should become soldiers, see Act of 1779. F. Grose, 
Military Antiquities, vol. i. pp. 74, 100. London, 1786. 

J. D. Lang, Transportation and Colonisation, pp. 9, 14. London, 

1837- 

' J. J. Jusserand, English Wayfaring Life in the Middle Ages, p. 244. 
London, 1892. 



100 A HISTORY OF PENAL METHODS 

wares ; poor students with letters testimonial from 
their universities ; '■ pilgrims real and false who were 
seeking shrines ; ^ labourers who were looking for better 
work/ and also the usual tramps and loafers * who would 
be trying to avoid any, runaways, a:nd prospective mer- 
cenary soldiers ' who wished to ply " the hired assassins' 
trade" either on land or sea/ In fact an unending 
line of people of all qualities and callings.' 

Into the stream of this moving multitude the various 
kinds of outlaws might be absorbed. Many offenders 
were allowed to abjure the realm,' including those who 
had passed through the ordeals,' and, prior to the year 
1530, lay criminals who had quitted the Sanctuaries 
under the Church's protection.'" Most of them would 
be making for the narrow crossing from Dover, that port 
and Plymouth being specially designated for them by 
the Statute passed in 1389." 

From thence they generally got across, and doubtless, 
from being a common custom, such migrations were to 
some extent prepared for and organized.'^ For instance, 
at Dover " The Maison Dieu was a hospital for the re- 
ception of poor priests, pilgrims, and strangers," both 

1 See 12 Ric. II. c. 7 a.d. 1388. 

14 Eliz. c. S ; Statutes of the Realm, vol. iv. pt. i. p. 592 : " And all 
Scollers of the Universityes of Oxford & Cambridge yt goe about 
begginge not being aucthorysed under the seal of the said Univ'sities 
by the Commyssarye Chauncelour or Vicechauncelour of the same." 

2 Jusserand, pp. 361, 395. 

3 Ibid. 259. For the strict laws against wandering by the working 
classes, see 12. Ric. ii. c. 3 a.d. 1388. 

* Peter Force, Collection of Historical Tracts, vol. i. p. 22. Wash- 
ington, 1836. 

^ J. W. Fortescue, Hist, of the British Army, pp. 78, 42, 44. Lond., 
1889. 
Enc. Brit. art. " Army,'' ix. ed. p. 569 

* " These professional warriors of no country and no principles 
served only for pay, and could always be bought by a higher bidder." 
Oscar Browning, The Age of the Condottieri, p. 31. 

' As to the numbers and audacity of the pirates, vide W. Laird 
Clowes, Royal Navy, vol. i. p. 371, ii. p. 49, etc. London, 1898. 

' Auckland, History of New Holland, p. vi. London, 1787. 

8 Ante, pp. 21, 23. 

1° Clerks who had taken Sanctuary need not quit the realm. See 
Statute 9 Ed. II. c. 15, a.d. 131 5. 

'1 13 Ric. II. c. 20. 

12 Hostlers at the ports were sworn to search their guests for bad 
money, etc. — ^Ruding, Coinage, i. p. 211. 

" M. E. C. Walcott, Inventories of St. Mary's Hospital, Dover, p. 2, 



BANISHMENT 101 

men and women, and there were similar establishments, 
the Holy Trinity at Arundell (now in ruins), at Ports- 
mouth, where the hall and chapel remain ; and at South- 
ampton, where St. Julian's Norman Chapel has been 
lately restored and the Early English Gallery remains." 
At one time the fare for a passage over the Channel 
was determined by statute,^ and was to be 2s. for a man 
and horse, and hd. for a person alone. This would 
amount to about (or rather less than) 30s. and 7s. td. 
respectively, according to present values. 

Even these small charges would have proved insur- 
mountable obstacles to penniless fugitives, and it has 
been said ^ that the poorer passengers were often neglected 
and allowed to accumulate,' but pilgrims and travellers 
were assisted by pious persons upon their road,* and the 
Church would look after refugees from its sanctuaries.^ 
At Calais there was a Maison Dieu, or receiving-house 
like the one at Dover, and the monasteries were ready 
havens of refuge everywhere. The shrine-seekers might 
be passed on from one to another ; poor travellers could 
perhaps join on to other parties and work their way. 
The dishonest and criminal would pose as pilgrims or 
rob people when they dared. So in various ways the 
adventurers would spread forth : ° to Amiens, Cologne, 
Paris ; ' to Italy, Spain, North Africa, Palestine ; and 
some took service under Byzantine emperors.' 

After 1530, the sanctuary refugees were retained at 
home, and upon the spread of Protestantism pilgrimages 
went very much out of vogue. 

There was, however, another way of dealing with 
those who had not been slain on the battlefield or executed 
in the ordinary course. The captives might be made 

1 4 Ed. III. c. 8. 

See Meiklejohn, Hist. i. p. 212 ; J. H. Ramsay, Dawn of the Constitu- 
tion, p. 539. London, 1908. 

2 S. P. H. Statham, History of Dover, p. 66. London, 1899. 

3 They used to tarry but one ebb and flood if they could get passage, 
and were to walk every day into the sea up to their knees and above, 
crying "Passage for the love of God and king." — Besant, Med. Lond. 
p. 212. 

* Jusserand, p. 379. 

^ Ibid. p. 363. 

« Ibid. 395. 

' P. Force, i. 22. 

' Fortescue, Hist. Army. i. p. 7. 



102 A HISTORY OF PENAL METHODS 

into galley slaves. The original habitat of the galley 
was the Mediterranean, existing under a variety of names 
and also in many different shapes and sizes. ^ It was a 
heavy ship, carrying masts and (usually lateen) sails, 
but it was mainly propelled by oars ; great sweeps that 
were pulled by slaves." 

Sometimes there were two or three banks of them.' 
The true galley was essentially a long and narrow ship ; ' 
the large ones might be about 150 feet, or about the 
length of a frigate, but yet with hardly a fifth of its cubic 
capacity.* It would be raised somewhat at the stern ' 
in order to make a platform or quarter-deck for the 
principal officers. In front was another but lower plat- 
form or bridge, whereon the soldiers, and in time of peace 
musicians, could stand, this deck forming a low roof over 
the galley's artUlery, which was pointed forward. Beyond 
the cannon came a short turtle-deck, the stem of the ship 
finally jutting out as a spur or ram, which extended above 
the water and also served as a sort of bowsprit. ' 

The rowers were seated in the waist of the boat, either 
in the open air, or, in the larger ships, between decks.' 
Therewereoften twenty-seven greatoars a side, each twelve 
meters in length ; ° fifty-four in all ; and every oar was 
pulled at by four men, or more,^" who were chained and 
fastened one to another," and generally to the bench as 

' The Viking pirate boats were small and narrow, the typical speci- 
men discovered at Gokstad and supposed to have belonged. to the 
ninth century, a.d., was 78 feet long, 16^ broad and but 4 feet deep ; 
its rowers would be picked warriors. See Clowes, i. 20. 

* At an earlier period, when the ships were lighter, with but a single 
man on each oar, they were generally rowed by freemen. The Moors 
manned their own ships up to a.d. 1500. Stanley Lane-Poole, Barbary 
Corsairs, pp. 205, 214. London, 1890. 

' Clowes, Navy, i. p. 102. 

* Jurien de la Gravidre, Les Derniers Jours de la Marine d Rames, 
p. 5. Paris, 1885. 

5 Lane-Poole, Barbary Corsairs, p. 213. 

* The large and round-built sailing ships of the North were very 
high at the poop and sometimes had castellated structures upon the 
bows as well ; we still speak of a vessel's " forecastle." 

' See J. Furtenbach, Architectura Navalis, from whose illustrations 
of a galley the above description is mainly derived. Ulm, 1629. 

' In ancient drawings of the Spanish Armada the oars may be seen 
protruding out of the port-holes in the middle of the ships' sides. Clowes, 
Royal Navy, 560, 572, etc. And, de la GraviSre, p. 65. 

» Chambers's Enc. art. "Galley," ed. 1901. 

10 De la Gravifire, Marine d Rames, p. 4. 

" Lane-Poole, Corsairs, p. 214, 



BANISHMENT 103 

well.^ Above and between the groups of oarsmen were 
raised plank-paths/ along which walked boatswains or 
warders with heavy whips, with which they could reach 
the bare backs of the rowers.' Each of these stood, when 
pulling his hardest, upon one foot, the other foot being 
planted on the next bench in front. The huge sweeps 
were shoved forward in perfect time, then, as the blades 
touched water, the slaves struck back, throwing their 
weight as well as their pulling-power into the tug they 
gave on the creaking oars.* 

The victims were frequently maritime prisoners who 
had been taken at sea and who were then consigned to the 
oars for years or even for life, the Eastern nations devoting 
their Christian slaves or captured prisoners to this use, 
and the Northern Powers returning the injury ; so that 
the miserable benchmen ° on either side must have fre- 
quently found themselves obliged to fight their own 
countrymen, and sometimes they even contrived to 
turn against their oppressors, particularly at the battle 
of Lepanto (1571).' But while among the crews of the 
Orientals and even of the Western Powers as well, there 
were purchased slaves,' the Europeans put their convict 
feUow-citizens on the chain. In France during the 
seventeenth century the law courts were enjoined to 
refrain as much as possible from killing, torturing, muti- 
lating, or even fining, their prisoners, in order to provide 
the gaUeys with crews. All who might anywise be com- 
pelled to row were to be forthwith swept up and secured, 
including loafers, the " possessed," and mad people.' 

Queen Elizabeth appointed a commission in 1602 to 
arrange that prisoners, " except when convicted of wilful 

' De la Gravifire, p. 47. 

In 1 513 after the action at Le Conquest between English and 
French ships, in which the former were repulsed, we find it suggested 
that the rowers, who had become demoralised, should in future be 
secured to their benches, implying that they were not always so fastened 
previously. — Clowes, Royal Navy, i. p. 457. 

2 Lane-Poole, Corsairs, p. 216. . 

3 There would be 10 warders to some 270 galley slaves in a ship of 
the larger sort. Chambers' s Ency. v. 63. 

* De la GraviSre, p. 13. 

^ Lane-Poole, Corsairs, p. 39. 

* De la GraviSre, p. 54. 
^ Ibid. pp. 21, 26. 

^ Ibid. p. 20, etc. 



104 A HISTORY OF PENAL METHODS 

Murther, Rape, & Burglarye," might be reprieved from 
execution and sent to the galleys " wherein, as in all 
things, our desire is that justice may be tempered with 
clemency & mercy . . . our good and quiet subjects 
protected and preserved, the wicked & evUl disposed 
restrayned & terrefyed, and the offenders to be in such 
sort corrected & punished that even in their punish- 
ments they may yeld some profitable service to the 
Comon welth." ^ 

According to this English proclamation, the galleys 
were considered more merciful than ordinary civil punish- 
ments — though, if Queen Elizabeth needed rowers, that 
recked but little, one way or the other — and they gave 
rise, especially in the Mediterranean usage, to a most 
frightful form of slavery. The condemned might be 
sentenced to serve for years, and, if they had been thereby 
reprieved from hanging,' to bondage in chains for life ; ' 
in those inhuman times such sentences were quite custom- 
ary,* and a contemporary writer has told us that those 
who were serving ° life-sentences on the ships were always 
considered the best-behaved oarsmen. Slaves of an 
alien race purchased or carried off would have but a 
slender chance of regaining their liberty, and when they 
were not thrown brutally overboard, would be worked 
on shore and elsewhere disposed of as, with increasing 
years and infirmities, they were rendered too weak to row. 

What sort of life did they actually undergo ? Doubt- 
less it varied much under different overseers. We must 
imagine them chained to their crowded benches, often 
for six months at a time and perhaps for longer, or 
penned in prison-like barracks at the seaports.' Their 
heads and their beards were shaved every month,' 
and their garments ranged from non-existence in the 
African waters,' to red caps, coats, shirts, and rough 

1 Rymer, De Commissione Speciali pro Condempnatis ad Galleas 
trans ferendis, torn. xvi. p. 446. 

2 Chambers's Encycloptsdia. 

3 J. de la GraviSre, p. 22. 

• M. Collet, Vie compute de S. Vincent de Paul, torn. iv. p. 57. 
Paris, 1818. 

^ De la GraviSre, quoting Captain Pantera, p. 34. 

• Joseph Morgan, Hist, of Algiers, p. 517. London, 1729. 
^ De la GraviSre, pp. 29, 60. 

• R. Hakluyt, Navigations, vol. ix. p. 464. Glasgow, 1904. 



BANISHMENT 105 

canvas breeches' for those enslaved in colder, more 
decorous latitudes." The rowers were exposed to all 
weathers, and were fed on hard fare, and frequently much 
stmted in water-supply. Captives of all ranks were 
herded ' and chained together promiscuously, and doubt- 
less grew to be as filthy and verminous as their shaven 
heads and paucity of clothing permitted them to become. 

But the worst horrors of their position appeared in 
action, whenever their boat was either pursuing or 
being chased. We know how men will strain themselves 
in a contest, we know how a race-horse may be punished 
with whip and spurs. We can only imagine, and happily 
have not seen, how slaves could be urged by their over- 
seers when they rowed for their rulers ' lives . In the battle- 
race they were lashed by the overseers with whips,* and 
indeed, by the fighting men generally, with rope-ends 
or anything that came handy. They were stimulated 
by sops of bread soaked in wine ° ; in the frenzy of flight 
they were sometimes implored and entreated by those 
who might share their doom if the ship were taken ; ' 
they were knocked about till covered with blood and 
wounds, and if, from any possible cause, one could work 
no further, all that was left of him would be thrown 
overboard. The galley in war-time was indeed a dreadful 
picture of pain and struggle ; to be fastened there was 
a fate far worse than that endured in all the grime and 
dust of a steamship's stokehole. It was a phase of 
pitiable human agony which has gone to return no more. 

In time of peace, and under humane commanders, 
there were conceivalily many mitigating conditions, so 
that the lot of the galley slaves ' may have been really 
and ultimately less miserable than that of those con- 
demned to prolonged imprisonment. Although it was 

' De la Graviere, pp. 13, 47. 

2 Hakluyt, ix. 464. 

3 The Turkish Captain and Governor Draguet (Torghut) ; John 
Knox, the Protestant preacher, and St. Vincent de Paul, the Catholic 
missionary, all served for a time as galley slaves at the oars. 

* J. Morgan, Algiers, p. 517. 

^ De la GraviSre, p. 14. 

^ Morgan, p. 517. ^ x ■ 1 

'' The slaves at Algiers are described as having been fairly con- 
tented ; see De la Motte and Bernard, J. Morgan's translation. Voyage 
to Algiers and Tunis for the Redemption of Captives, p. 42. London, 1731. 



106 A HISTORY OF PENAL METHODS 

found, as we should have expected, that men became 
hardened and embittered in the course of their servitude, ^ 
yet, as Admiral Jurien de la Graviere has pointed out,' 
the teams {chiowmes) would be tended to some extent, 
as poor horses are, in their masters' own interest. Men 
weakened beyond a point could not pull, so they must 
needs have been kept in a state of efficiency, and ' we 
find recorded many cases of individuals who served long 
terms, yet ultimately emerging, lived to extreme old age 
in spite of all hardships.* 

Francis Bacon remarked ' that " Galley Slaves, not- 
withstanding their misery, are generally Fat and Fleshy," 
at least they worked in the open air, and saw the sun 
fiU heaven by day and the cold silver sickle journey 
through night. They had the common fellowship of 
distress, and felt the free wind blowing upon their faces, 
and when they lay down together, fixed to a narrow, over- 
crowded trough of deck they would be rocked by the 
endless waves which rolled in from the limitless horizon, 
defying the chains of men. 

After the battle of Lepanto in 1571 and an English 
naval victory in 1590,' the round or sailing-ships with 
their heavier batteries gradually supplanted boats moved 
with oars, though these latter endured some time as 
auxiliaries. Towards the end of the sixteenth century the 
Galley merged into the Galleas (" un batiment mixte") ' 
and finally into the Galleon or true sailing-ship, and the 
convicts were kept in the bagnes (in France from 1748 '), 
prisons, barracks or hulks round about the great harljours, 
and were set to work in chg,ined gangs as Government 
prisoners. 

But even when not employed as living machinery, 
convicts were frequently taken away to sea, and the great 
explorers and adventurers carried them in their vessels.' 

* Collet, St. Vincent de Paul, iv. p. 56.. 
2 Marine A Rames, p. 15. 

^ Hakluyt, Navigations, ix. pp. 464, 465. 

* De la Graviere, p. 12. 
^ Sylva Sylvarum, 733. 

* De la Graviere, pp. 55, 56. 
^ Ibid. p. 65. 

' P. Zaccone, Histoire des Bagnes. Paris, 1857. 
' Barrington, Statutes, p. 446. 



BANISHMENT 107 

Columbus, Vasco de Gama, and our own Frobisher pos- 
sessed them on board.* 

The time arrived when the other half of the globe was 
found beyond the trackless waste of the Atlantic Ocean, 
and into it poured adventurers seeking gold and eager 
for riches. At first they made slaves of the simple 
savages whom they captured,* but as these were rapidly 
decimated and withered away, or, in other parts, were 
found to be aloof or intractable, they came to rely on 
labourers sent from home ; and of these some were 
prisdners. In 1597 was passed a measure sanctioning 
transportation.' It was called An Acte for Punyshment 
of Rogues, Vagabonds and Sturdy Beggars.* Idlers were 
to be taken and flogged, receiving a " testymonyall " to 
that effect as a sort of passport, and were then to be 
handed on to their place of birth or last residence, or they 
might be put into the common gaol or house of correction 
for a year or tiU placed, and those who were really too de- 1 
crepit to be employed were to be relegated to almshouses. ( 

" Provided always, & be it enacted," the Bill con- 
tinues, " that Yf any of the said Rogues shall appear to 
be dangerous ... or otherwyse be such as will not be 
reformed. That in every such case it shall & may be 
Lawfull to commit that rogue to the Howse of Correccion 
or otherwyse to the Gaole . . . there to remain untill 
the next Quarter Sessions ... & then such of the Rogues 
so committed as . . . shalbe thought fitt not to be de- 
livered, shall ... be banyshed out of this Realme and 
all the domynions thereof . . . and shall be conveied 
unto such partes beyond the seas as shalbe at any tyme 
hereafter for that purpose assigned by the Privie Counsell. 
. . . And if any such Rogue so banyshed as aforesaid 
shall returne agayne into any part of this Realme . . . 
without lawfull Lycence or Warrant so to do, that in 
every such case the offence shalbe Fellony and the Party 
offending therein Suffer Death as in case of Felony." 

Quite early in the seventeenth century, the new lands 
of the West began to be exploited energetically. In 

1 Hakluyt, vii. p. 286. 

» E. A. Ober, Life of Columbus, p. 244, etc. New York, 1906. 

3 39 Eliz. c. 4. 

* Statutes of the Realm, vol. iv. pt. 2, p. 899. London, 1819. 



108 A HISTORY OF PENAL METHODS 

1606 the Virginia Company was created by James I. 
and by it a number of servants were emigrated, who 
bound themselves to serve the Company for five years 
(apparently for seven '■ after 1609), in return for their 
passage, maintenance, and the alluring prospect of 
becoming free landowners. The Company kept a tight 
hold over them until 1617, and over many until two 
years after that, when most of the original planters 
obtained their freedom, having actually served the 
Colony under conditions which were described as being 
" in noe way better than slavery " for nine or ten years. ^ 
Meanwhile others appear to have been conveyed over 
compulsorily. Sir Thomas Dale, writing to Lord Salis- 
bury in August 161 1, alludes to " the 300 disorderly 
persons he took with him," saying, " They are profane 
and mutinous," and that " their bodies are so diseased 
and crazed that not sixty of them may be employed 
upon labour." ' 

In spite of this, he asks for more labourers,' and " on 
account of the difficulty of procuring (2,000) men in so 
short a time, all offenders out of the common gaols con- 
demned to die should be sent for three years to the Colony 
(Virginia) ; so do the Spaniards people the Indies." It 
would appear that the first batch of 300 whom Governor 
Dale condemned so unsparingly were loafers, tramps, 
and hopeless degenerates ; for, speaking about other 
prisoners Mr. Ballagh quotes him as saying that they 
" are not always the worst kind of men either for birth, 
spirit, or body, and would be glad to escape a just sen- 
tence and make this their new country, and plant therein 
with all diligence and comfort." ^ 

From about 1618 ° the regular shipping of convicts 
became a customary expedient.' In 1619 James I. 

* J. C. Ballagh, White Servitude in the Colony of Virginia, p. 12. 
Baltimore, 1895. 

2 Ibid. p. 24. 

' W. N. Sainsbury, Calendar of State Papers, Colonial Series, 1574- 
1660. p. II. London, i860. 

* Sainsbury, p. 11. 
6 Ballagh, p. 35. 

* Ibid. p. 36. 

' W. Stith, Hist, of Virginia, p. 167. Williamsberg, 1747. 
E. D. Neill, Hist, of the Virginia Company, p. 154. Albany, 1869. 
A number of waifs and strays were also sent out as apprentices. 
Ballagh, p. 28 ; Neill, p. 163. 



BANISHMENT 109 

ordered loo dissolute persons to be conveyed out by the 
Company, and from 1618 to 1622 a number arrived,' 
and these continued to be dispatched for some fifty year's 
longer.' But in the year 1663 there had been a mutiny, 
and this influenced local feeling against the convicts.' 
In 1671 * it was ordered that no more Newgateers were 
to be admitted into Virginia," though they continued to 
be dispatched to the West Indian Islands.' Some 
convicts were sent to Minorca after the peace of Utrecht 
in 1713, but in 1717 appeared a new Act of Parliament ' 
re-establishing transportation to America, and that on a 
much-extended scale. 

Whereas, says this Act (which is sometimes referred 
to as of 1718), " many offenders to whom the royal 
mercy hath been extended,' upon condition of transporting 
themselves to the West Indies, have often neglected to 
perform the said condition, but retmrned to their former 
wickedness and have at last, for new crimes, [been] brought 
to a shameful, ignominious death ; and whereas in many 
of His Majesty's Colonies and Plantations in America 
there is great want of servants," etc., persons henceforth 
convicted of offences within Clergy were to be liable to 
seven years' transportation, and those reprieved from 
execution for graver crimes were to serve fourteen 
years,' or it might be longer, and the contractors for their 
transportation ^° were to possess a property in their ser- 
vices, and this was considered to be sufficient reward, 
though at one time the Government had paid £5 a head " 

^ Ballagh, p. 36. 

2 Ibid. 

' James Grahame, Hist. United States, p. 421. Philadelphia, 1845. 

• Sainsbury, State Papers, 1669-1674, p. 242. London, 1889, 
Ballagh, p. 37. 

Sainsbury, State Papers, 1675-1676, p. 346. London, 1893. 
' Maryland followed suit in 1676. 

• Barrington, p. 446. 
' 4 Geo. I. c. II. 

' Prisoners often gave securities to transport themselves ; see 
Sainsbury, State Papers, 1 669-1 674, p. 6. 

• W. Hawkins, Pleas of the Crown, vol. iv. p. 304. London, 1795. 
1" P. Colquhoun, Police of the Metropolis, pp. 454, 455. London, 1800. 
1' Those who undertook the transportation of the convicted were 

generally bound in sums of money to carry out their undertaking 
efiectively. Thus, in the reign of Charles I. we find two persons giving 
pledges of £^0 apiece to convey a certain convict then in the House 
of Correction safely to Barbadoes. Vide J. C. Jeafireson, Middlesex 



110 A HISTORY OF PENAL METHODS 

passage-money. (See Journal of the House of Commons, 
vol. xl. p. 1161.) 

In 1767 an Act ' was passed for the more speedy and 
effectual transportation of offenders. In later times the 
ranks of the transported were greatly swelled by prisoners 
of war. After the battle of Dunbar (1650) a number of 
the routed Scottish army ' were sent to New England 
for periods of six, seven, or eight years, and after the 
battle of Worcester (1651), Cromwell found a fresh batch 
of prisoners on his hands. For these all sorts of measures 
had been proposed : ' they were to be sold as soldiers 
to foreign Powers ; * they were to be sent to work in the 
gold mines of Guinea; but actually they were more 
fortunately disposed of. Some appear to have been 
received in Virginia.^ Others were selected by, and 
distributed among, members of Parliament and well 
trusted persons ' who gave security for their safe custody, 
and doubtless employed the prisoners for their profit. 
At first 1,000 ' and afterwards other parties were given 
over to assist some adventurers who were draining fen 
lands, and most of those still left over were dispatched to 
Bermuda.' In 1655 the Penruddock rebels were sent to 
Barbadoes,' and in 1653-1656 a great number of Irish 
bandits,' including young people, were carried away to 
Jamaica and other Plantations.'" 

In the year 1685 the fall of the Duke of Monmouth at 
Sedgemoor placed all his unhappy followers from the 

County Records, vol. iii. p. 184. London, 1886. Occasionally the 
contractors failed to perform their part of the business and dropped 
their prisoners nearer home. See Sainsbury, State Papers, 1661-1668, 
p. 259. The contractors might secure their prisoners as they chose, and 
it would be felony to try to rescue them. See Statute 6 Geo. I. c. 23, s. 5. 

1 8 Geo. III. c. 15. 

' S. R. Gardiner, Hist, of Commonwealth, vol. i. p. 328. London, 
1894. 

» Ibid. pp. 464, 465. 

• "Troops were bought and sold like cattle by their sovereign 
masters and dukes." — Meiklejohn, Hist. ii. p. 236, ed. 1890. 

' Ballagh, p. 35. 

• Gardiner, Commonwealth, i. p. 465. 
' Ibid. p. 466. 

» Gardiner, vol. iii. p. 194. 

» Thomas Burton's Diary, 1 656-1659. Rutt's ed., vol. i. p. iv 
London, 1828. 
'"' Sainsbury, State Papers, 1 574-1660, pp. 401, 409, 441. 
Ibid. p. 407. 



BANISHMENT 111 

West within the grip of Jeffreys and his master.' 
Hundreds were sold and sent away into bondage. " The 
courtiers round James II. exulted in the rich harvest 
which the rebellion promised, and begged of the monarch 
frequent gifts of their condemned countr3Tiien." Jeffreys 
heard of the scramble, and indignantly addressed the 
king : " I beseech your Majesty that I may inform you 
that each prisoner will be worth ten pounds if not fifteen 
pounds apiece, and Sir, if your Majesty orders these as 
you have already designed, persons that have not suffered 
in the service will run away with the booty. ' ' ^ They were 
handed over as slaves, like the Commonwealth prisoners ; 
and fearing that they might be treated too leniently — 
for there were people of all grades among them — 
the bigoted king wrote to the Plantation authorities, 
" Having shown mercy to some of the late rebels by 
ordering them to be transported to the Plantations, 
we hereby instruct you that those sent to Jamaica shall 
be kept there, and shall serve their masters for ten years 
without permission to redeem themselves by money or 
otherwise, till that term be expired." ' 

The attempted invasion of 1745 * occasioned more 
banishing,' and in 1747 an Act" was passed forbidding 
deported rebels from coming home without special licence, 
and threatening to hang them like other escaping 
convicts if they dared do so." The Act also forbade their 
sojourning in any of the Dominions of France or Spain ; 
all those who had fled thither were to be held proscribed, 
and none were to correspond or communicate with them 
on pain of the gallows tree. 

^ Meiklejohn, Hist. ii. p. IJS, ed. 1890. 
2 G. Bancroft, Hist. U. S., vol. ii. p. 250, ed. of 1834. 
» Sainsbury, State Papers, 1685-1688, p. 105, sec. 404. London, 
1899. 

* " A great number of prisoners who were not executed were shipped 
off as slaves to the Plantations, a fate scarcely less terrible than death ; 
some were pardoned on consideration of their entering the service of 
the Mng as sailors, some were pardoned later on, a few, it is said, 
escaped." — Justin McCarthy, Hist. Four Georges, vol. ii. p. 309. London, 
1890. 

•• 20 Geo. II. c. 46. 

* Prisoners returning before their time were all along liable to be 
executed.— See the Statutes 39 Eliz. c. 4 ; 4 Geo. I. c. 1 1 ; 6 Geo. I. c. 23, 
and 16 Geo. II. c. 15, by which a reward of ;£20 was offered for securing 
a conviction in the year 1 743 . See also Journal of the House of Commons 
of 1752, p. 345, 



112 A HISTORY OF PENAL METHODS 

The young and growing colonies hungered for labourers, 
and did their best to stimulate importation. In the early 
days, whosoever conveyed a servant at his own expense 
to Virginia * might receive a grant of loo acres of land for 
each servant imported,* and this appears to have been 
the custom in other colonies.' Fifty acres was the 
more usual grant, and in the seventeenth century 
we find a certain Captain Cornwallis ' claiming land 
for having imported seventy-one servants, and one 
Councillor Talbot receiving 32,000 acres for having 
brought over 640 persons in a period of twelve 
years ; " which works out at fifty acres for each person 
carried over. 

The existence of such allurements and the satisfying 
of such claims reveal how strong was the call for labour, 
and led to an extensive export trade in white servants, 
which came to be undertaken by sea-captains and specu- 
lators. The law of 1717, already alluded to,' permitted 
merchants and others to contract with young persons 
between the ages of fifteen and twenty-one to convey 
them over and keep them out in the colonies in con- 
sideration of having the right to their services for any 
period not exceeding eight years. An extensive trade 
was also carried on with people who desired to be trans- 
ported across the Atlantic, but who had not the means 
to pay for a passage. They were known as Redemp- 
tioners or Freewillers, it being a common custom to 
allow them on landing to sell their services to the best 
master they could procure, for three, four, or five years.' 
Their new owner would then redeem them by paying 
their passage-dues. 

Many made themselves altogether over to their trans- 
porters, and were then bound to work for them (or for 
their assigns) for the length of time stipulated. The 

* R. Hildreth, Hist, of the United States, vol. i. p. 99. New York, 
1849- 

' E. I. McConnack, White Servitude in Maryland, 1634-1820. Balti- 
more, 1904. 
» E. D. Neill, Virginia Carolorum, p. 56. Albany, 1856. 

* McCormack, p. 13. 
^ Ibid. p. 21. 

* 4 Geo. I. c. II. 

' J. Boucher, Causes and Consequences of the American Revolution, 
p. 184. London, 1797. 



BANISHMENT 113 

terms set down in the indentures • ranged from one to 
five years, and four or five were usual periods of servitude. 
When persons were brought into a colony with no definite 
contract beyond having to work for the payment of 
their passage,' the terms of bondage were fixed by the 
legislatiure of the colony, and were generally for five 
years; or if the imported person were under nineteen,' 
until he or she attained the age of twenty-four. The 
contractor who had carried the serf across the ocean had 
absolute right to dispose of his passenger for the number 
of years that were fixed by indenture or local law,* and 
to invoke the civil power to hold his slave. Even if a 
convict were pardoned the Crown compensated the owner 
for the loss of his bondman's services." The servants 
were fre\iuently sold on a ship's arrival, like other slaves, 
and commanded a price of £io apiece for a five-years 
contract.' The prisoners of war, with their longer sen- 
tences, appear to have been valued at from £io to £15 ; ' 
the negro slaves, who were held for life, fetched £25 ' 
and sometimes £30.' With servants or serfs fetching 
a ready price," it became a regular and profitable business 
to supply them, and they were often obtained by piratical 
kidnapping. 

By the middle of the seventeenth century " we find 
these illegal press-gangs widespread and organized, 
their victims," as usual, being seized from the proletariat ; 
children and young persons of both sexes, with men 
and women of the casual classes," and sometimes people 

I McCormack, pp. 38, 39. 

John Hammond, Leah and Rachel, p. 8. London, 1655. 
John Fiske, Old Virginia, vol. ii. p. 177. London, 1897. 

* J. C. Hurd, Law of Freedom and Bondage, p. 220. Boston, 1857. 
« W. W. Hening, Laws of Virginia, vol. iii. p. 447. New York, 1823. 

* Ballagh, p. 34. 
5 4 Geo. I. c. II. 

« Bancroft, Hist., vol. i. p. 125, ed. 1885. 
' Ibid. ii. p. 251, ed. 1834. 

* Ibid. i. p. 125, ed. 1885. 

8 R. Ligon, History of Barbadoes, p. 46. London, 1657. 
10 Another estimate, of a.d. 1664, puts the price at ;£20 for negroes 
and £6 for whites. See Sainsbury, State Papers, Col. series, p. 229. 

II Ballagh, p. 38. 

'2 But in the time of revolts and rebelUons, even people of quality 
might be carried off and lost sight of, which caused complaint ; see 
Sainsbury, State Papers, Colonial Series, 1661-1668, p. 221. 

Journal of the House of Commons, vol. viii. p. 403. 

1' W. Bullock, Virginia, p. 14. London, 1649. 

8 



114 A HISTORY OF PENAL METHODS 

of superior positions ^ whom their relations desired to 
put away and get rid of, were pounced upon and carried 
on board vessels, and if not promptly rescued or ran- 
somed,'' conveyed as slaves to distant colonies. 

In 1645 we read of an Ordinance from the House of 
Lords. " Whereas," it says, " the Houses of Parliament 
are informed that diverse lewd persons do go up and 
down the city of London and elsewhere and in a most 
barbarous and wicked manner steal away many little 
children : It is ordered by the Lords and Commons 
in Parliament assembled, that all Officers and Ministers 
of Justice be hereby streightly charged and required to 
be very deligent in apprehending all such persons as are 
faulty in this kind. ... It is further ordered that the 
marshals of the Admiralty and the Cinque Ports do 
immediately make strict and deligent search in all ships 
and vessels upon the river and at the Downes for all 
such children. It is further ordered that this Ordinance 
be forthwith published in print." ' But many who 
dealt with kidnappers were well placed * and amongst 
them were yeomen, tradesmen, doctors, courtiers and 
fine ladies.^ Even mayors and justices would some- 
times ' ' intimidate small rogues and pilferers who, under 
terror of being hanged, prayed for transportation as the 
only avenue to safety, and were then divided among the 
members of the court." ° In later times this was once 
exposed at the Bristol assizes held by the dreaded Lord 
Chief Justice Jeffreys,' who placed the offending mayor 
and aldermen,' robes and all, in the dock,' and, with 
that eruptive vehemence for which he was notorious, 
he told them in mordant words just what he thought 

• J. Grahame, Hist. U.S., p. 421. 

2 For instance, we find a private citizen writing to Sir A. Ashley 
Cooper that there are three ships in the Thames doing kidnapping work 
" and though the parents can see their children in the ships, yet without 
money they will not let them have them." — Sainsbury, State Papers, 
1661-1668, p. 555. 

3 Journal of the House of Lords, vol. vii. p. 361. 

* BaUagh, p. 38. 

'^ Meiklejohn, Hist. ii. 158. 

' Bancroft, Hist. U.S., vol. ii. p. 251, ed. 1834. 
' September 21, 1685. 
' Bancroft, p. 251. 

° Roger North, Life of Lord Keeper Guilford, vol. ii, p. iii. Lond., 
1808. 



BANISHMENT 115 

of them." ... I find they can agree for their in- 
terests ... if it were but a kid (for I hear the trade 
of kidnapping is in much request in this city) ; they 
can discharge a felon or a traitor (this is the part that 
appears to have shocked him most !) " provided they 
wUl go to Mr. Alderman's plantation in the West 
Indies." 

Then turning upon the mayor he roared, " Kidnapper, 
you I mean, Sir, do you see the keeper of Newgate ? If 
it were not in respect for the sword which is over your 
head I would send you to Newgate." And speaking 
of another hoary sinner who had sat upon the bench, 
the fiery judge declared he would have his ears off before 
he went out of the town.' 

But this was altogether tardy and exceptional, and 
beyond doubt great numbers had been stolen. One 
large exporter is said to have spirited away 500 persons 
annually to Barbadoes, for a period of twelve years,^ and 
another man is mentioned as having taken over 840 
kidnapped people in the course of a single year. Although 
the persons thus illegally captured were mainly taken from 
the unimportant populace, yet these outrages became 
extensive enough to attract attention and to rouse fierce 
resentment in the people's minds. A Bill was introduced 
in the House of Commons on July 30, 1661, and was 
discussed in 1662 but never got home.' In 1664, says 
Ballagh, the abuse had grown so bad that tumults were 
frequently raised in the streets of London.* It was 
only necessary to point the finger at a woman and call 
her a common Spirit to raise a " ryot " against her.' 

In 1662 the Mayor of Bristol — presumably not the 
magistrate who was to stand before Jeffreys more than 

* H. B. Irving, Life of Judge Jeffreys, p. 300. London, 1898. 

2 Sainsbury, State Papers, Colonial Series, 1574-1674, p. 521, sec. 
1214. 

3 See Journal of the House of Commons, vol. viii. pp. 316, 401, 403, 
412. 

* White Servitude, p. 39. 

' An illustration of this appeared in 1649, when we find a person 
bound over " to answer for assaulting and pumping of one Margaret 
Emmerson upon the false report of (being) a Spiritt or an inticer or 
inveagler of children from their parents, there being noe such charge 
or accusation against her." — Jeaffreson, Middlesex County Records, 
vol. iii. p. 181. 



116 A HISTORY OF PENAL METHODS 

twenty years afterwards — petitioned the King. " Among 
those, he said, " who repair to Bristol from all parts to 
be transported beyond the seas, some are husbands that 
have forsaken their wives, others wives who have aban- 
doned their husbands ; some are children and apprentices 
run away from their parents and masters ; oftentimes 
unwary and crediilous persons have been tempted on 
board by man-stealers, and many that have been pur- 
sued by hue and cry for robberies, burglaries, or breaking 
prison, do thereby escape the prosecution of law and 
justice." ' He prayed for power to examine all masters 
of ships . . . and also all servants and passengers whether 
they go by their own free will and to keep a register of 
them. In 1664 there was another petition," this time 
from merchants, planters, and masters of ships, trading 
to the Plantations. " There is a wicked custom," they 
said, " to seduce and spirit away young people to go as 
servants to the Plantations which petitioners abominate 
the very thought of. This gives the opportunity to 
many evil-minded persons to enlist themselves volun- 
tarily to go the voyage, and having received money, 
clothes, diet, etc., to pretend they were betrayed or 
carried away without their consent. They pray that 
persons may be appointed under the great seal who may 
enter the name, age, quality, place of birth, and last 
residence, of those desiring to go to the said Plantations, 
which wUl be the means to prevent the betraying and 
spiriting away of people." 

Sir Heneage Finch reported upon this matter, and 
found that the mischiefs complained of were very fre- 
quent,' there being scarce any voyage to the Plantations 
but some were carried away against their wills, or pretend 
to be so, after they have contracted with the merchants, 
and so run away. A little later in the same year (1664) * 
the Lord Mayor and the Court of Aldermen sent a 
memorial to the Sovereign, saying ' ' That usually for the 
supply of soldiers to diverse parts and sending of men to 
the several Plantations beyond the seas without lawful 

1 Sainsbury, State Papers, 1661-1668, p. 98. 

2 Ibid. p. 220. 

3 Ibid. p. 220, sec. 769. 
* Ibid. sec. 770. 



BANISHMENT 117 

press, certain persons called Spirritts do inveagle and 
by lewd subtilties entice away youth." At length the 
Registry Office, which had been talked about since the 
year 1661, took practical shape,' as in the year 1664 there 
were Proposals to the King in Council ' ' to constitute 
an office for transporting to the Plantations all vagrants 
and idle persons that can give no account of themselves 
. . . such persons to be transported from the nearest 
seaport and to serve four years according to the laws 
and customs of those islands." (Virginia was sometimes 
spoken of as an island and is evidently included.) " For 
want of such an office no account can be given of many 
persons of quality transported in the late times of re- 
bellion, wherefore in future all such persons to be re- 
gistered under penalty of £20, no person under twelve 
years of age to be transported unless their friends and 
relations shall first personally appear at the office and 
give good reasons. . . ." ^ 

On September 7 of the same year (1664) ' there came 
an Order in Council and a commission to the Duke of 
York, who was Lord High Admiral, to see that those 
proposals were put in force ; but kidnapping appears to 
have gone on merrily all the same. * In 1668 Ashley was 
implored to make kidnapping a capital offence, as it had 
already been in the border counties, i.e. Northumber- 
land, Cumberland, and Durham, by 43 Eliz. c. 13 ; and on 
March 11, 1669,= a Bill having this end in view was read 
a first time in the House of Commons. It was passed 
by the House on March 18, 1669," on which day it went 
up to the Lords,' but would seem afterwards to have got 
lost in the lobbies of the Circumlocution Office. 

On April 9, 1670, the Lords " were to be " put in mind 
of the Bill against spiriting away the Children," and 
again on November 17 or 18 the Peers are reminded ' 

1 Sainsbury, State Papers, Colonial Series, Preface, p. xxvii. andp ii. 
sec. 32, 35 ; sec. lOi. 

2 Sainsbury, p. 221, sec. 772. 

3 Ibid. p. 232, sec. 798. 

• Sainsbury, State Papers, Colonial Series, p. 555, sec. 1720. 
^ Commons Journal, p. 137. 

• Ibid. p. 142. 

^ Lords Journal, vol. xii. p. 313. 

' Commons Journal, p. 156. Lords Journal, vol. xii. p. 340. 

• M. A. E. Green, Domestic State Papers, p. 541. London, 1895. 



118 A HISTORY OF PENAL METHODS 

of the " Bill against stealing and transporting chil- 
dren." ' 

The Bill passed the House of Lords on March i8, 
1670/ and twenty- three days later (for up to 1751 the 
legal new year began on March 25) on April 10, 1671, 
it was returned from the Lords.' 

It was read a second time on February 13, 1672 ; * 
continued on March 5," and withdrawn on November 3, 
1673. « So that although a " law " of March 18, 1670, is 
sometimes alluded to,' the various Bills appear to have 
been abortive and the punishments were generally light. ' 
Blackstone remarks that kidnapping was punished by 
fine, imprisonment, and the pillory. The Middlesex 
Records furnish numerous examples of sentences that 
were actually given, and we may therefore select a 
few specimens.' " 24 Feb., 1672, Mary Newport for kid- 
napping Mary Holmer and putting her on board a ship 
for Jamaica ; fined twenty marks." " October, 1680 ; 
John Morris for kidnapping Thomas Russells " and by 
force conveying him on board the ship Cambridge, bound 
for Virginia, to sell him. Found guilty and fined 40 
marks ; committed to the new prison, there to remain 
till he should have paid the fine." The sting of that 
sentence may have been in its tail, for we do not know 
how long a term of imprisonment it might mean. On 
another occasion two persons were convicted of having 

1 Commons Journal, p. i66. 

2 Lords Journal, vol. xii. p. 462. 

' " Mr. Speaker, the Lords have returned you down a Bill intituled An 
Act to prevent stealing and transporting children and other persons, 
with some alterations and amendments." — Commons Journal, p. 233. 

* "A Bill to prevent the stealing away and selling of children beyond 
the seas was read a second time, etc." Commons Journal, p. 251. 

^ Commons Journal, p. 262. 

* " A Bill being tendered and read to prevent stealing and trans- 
porting children and other Persons ; but the Manner of it being dis- 
liked, the Bill was vrithdrawn upon the Question." — Commons Journal, 
p. 286. 

' For instance by Sainsbury, State Papers, 1661-1668, Preface, p. xxix. 

Ballagh, p. 39, Did. Nat. Biography, Art. "Ashley Cooper," p. 1043. 

' In the Colonies the penalties appear to have varied considerably. 
Sometimes a iine was inilicted of twice the value received for the person 
sold (vide Hening, Laws, iii. p. 448), but elsewhere death was, at least 
nominally, appointed for the offence of man-stealing. Hutchinson, 
Papers, p. 174. 

* Jeaffreson, vol. iv. p. 38. 
" Ibid. p. 94. 



BANISHMENT 119 

pounced upon a girl of sixteen and carried her upon ship- 
board ; they were to be in prison till their fines should 
be paid ; ^ the fine each had to pay was but twelve pence. 
When a certain WUliam Haverland was convicted of 
kidnapping and sentenced to pay 40 marks and to be 
kept in gaol until they were paid ^ (besides to stand three 
times in the pillory) he appears to have been locked up 
for nearly six months, at the end of which period he 
received a pardon. 

So that we are entitled to say that for those times, 
when the criminal law recked little of human life, the 
penalties for kidnapping were of a very lenient character. 
But economic forces, ever more powerful in the long 
run than penal laws, began to operate against kid- 
napping, and even against white servitude generally. 
The social evU of coloured slavery — the long-accumu- 
lated account for which has yet to be paid — was im- 
planted, and gradually spread over the colonies. This 
plague was developed late, and from small beginnings, 
by slow degrees. The Spaniards had imported negroes 
to their own colonies from 1701 ; ' in the year 1619 
twenty negroes were sold from a ship to Virginia.* In 
1625,'' more than five years after the introduction, and 
when the white population numbered 25,000, there were 
but twenty-three black slaves in the colony ; ^ even in 
1640 there were but 300 negroes to be found in Virginia. 

From the year 1635 land grants were apportioned to 
importers of negroes as well as of white people, and the 
large estates thus accumulated increased the demand 
for slave labour of all sorts. In 1662 a new company 
was founded to undertake slave trading. In 1671 there 
were 2,000 slaves in Virginia,' but, so far, the white 
servants outnumbered them, as they totalled 6,000. The 
importation of negroes increased with time ; in 1708 
there were 12,000 slaves ; ' about fifty years later there 

^ Jeafireson, p. 24;. 

" Ibid. Preface to vol. iv. p. xliii. 

3 Hurd, Freedom and Bondage, p. 205. 

* J. C. Ballagh, History of Slavery, p. 7. Baltimore, 1902. 
' Fiske, Old Virginia, p. 188. 

* Ballagh, Slavery, p. 9. 
^ Neill, p. 330. 

* Ballagh, Slavery, p. 11. 



120 A HISTORY OF PENAL METHODS 

were 120,156, the white population numbering 173,316,' 
and just before the war of the American revolution 
Great Britain had 192 ships engaged in the trade and 
they were transporting 47,000 annually.^ 

The advent of such enormous numbers of lifelong 
slave-workers gradually took off the edge of colonial 
hunger for labourers,' although indentured servitude 
endured into the first quarter of the nineteenth century.* 
The war between the colonies and the mother-country ^ 
closed the door upon transportation to America about 
the year 1779.^ Virginia forbade the importation of 
convicts who were wont to be brought in and then sold,' 
in 1788.' 

What then had been the actual condition of those 
transported to the American and island plantations ? 
The colonial evidence is extremely various : many, if 
not most, convicts desired and urgently petitioned to 
be sent out ; " yet others dreaded it more than death." 
Although the pioneers underwent very great hardships," 
yet the conditions of those who came afterwards were 
largely determined by their personal qualities and equally 
by those of the masters they served under. '^ 

Often the food was meagre and the life rough and hard," 
and these conditions pressed with fatal severity upon 
those who were in any way degenerate and sickly, and 
numbers were." We can still read the piteous lamenta- 

1 Ballagh, Slavery, p. 12. 

2 Ibid. p. 5. 

3 McCormack, pp. ^7, 107, iii. 

* W. E. H. Lecky, Hist. Eighteenth Century, vol. vi. p. 253. Lond,, 
1887. 

^ McCormack, p. 105. 

' See also the Statute 19 Geo. III. c. 74. 

' Ballagh, White Servitude, p. 38. 

^ Hening, Laws of Virginia, vol. xii. p. 668. 

' For example. Sir John Towers, " having long lain in a loathsome 
prison," prays for speedy transportation (State Papers, Colonial Series 
A.D. 1666, p. 409), and there are many such cases. 

1" See Captain John Smith, New England's Trials (1622) in Peter 
Force's Collection of Historical Tracts, vol. ii. p. 16. Washington, 1838. 

T. C. Gambrall, History of Early Maryland, p. 84. New York, 1883. 

^^ Hammond, Leah and Rachel, p. 3. 
Fiske, Old Virginia, 153, 154. 

'2 R. Ligon, Hist, of Barbadoes, p. 44. 

1^ In the early days of Barbadoes the servants are said to have had 
no meat " unless an oxe died." Ligon, Hist., p. 43. 

^* See J. H. Lefroy, History of the Bermudas, p. 204. Loudon, 1882. 



BANISHMENT 121 

tions of one Richard Frethome. He wrote that since 
he landed he had eaten nothing but pease and cobboly, 
" and had to work both early and late for a mess 
of water gruel and a mouthful of bread and beef; 
a mouthful of bread for a penny loaf cannot serve four 
men." He had nothing at all, not a shirt to his back but 
two rags, nor no clothes but one poor suit, nor but one 
pair of shoes, but one pair of stockings, but one cap, 
but two bands. " Oh that you did but see my daily and 
hourly sighs and groans, tears and thumps that I afford 
mine own breast, and rue and curse the hour of my birth 
with holy Job. I had thought np head had been able 
to hold so much water as hath and doth daly flow from 
my eyes." ' The poor creature died but a few months 
afterwards. 

Besides the inevitable hardships of their situation, 
the indentured servants had frequently to endure their 
masters' violence. In Virginia ^ their lives are said to 
have been protected only in theory, and of Barbadoes 
in the early period a witness exclaims, " Truly I have 
seen such cruelty there done to servants as I did not 
think one Christian could have done to another." * The 
most common punishment was, of course, flogging ; * 
servants were generally flogged where freemen were 
fined ; and in Virginia, ten to thirty lashes were 
the usual number inflicted,' but the actual severity would 
depend on the overseers and the instruments they em- 
ployed. ° 

In 1705 ' a law made it necessary to get a Justice-of- 
the-Peace order to be allowed to flog a Christian white 
servant naked ; under a penalty of 40s. The servants 
would frequently run away from ' bad masters, and be- 

1 Neill, Virginia Carolorum, p. 58. 

2 Fiske, O. V., p. 178. 
' Ligon, Hist., p. 44. 

* Ballagh, White Servitude, p. 45. 
^ McCormacfe, p. 66. 

* There were gallows and chained gangs, too, for those who committed 
crimes in the colony. Vide H. C. Lodge, Hist, of the English Colonies 
in America, p. 125. New York, 1881. 

Ballagh, p. 35. 
"• Ballagh, W. S., p. 59. 

Hening, iii. p. 448. 
' Ibid. ii. p. 35. 



122 A HISTORY OF PENAL METHODS 

came liable to severe penalties if recaptured : ^ to whipping, 
branding, and to having their serving time extended by 
from one to seven years ; ^ and they might have to labour 
in chains. Yet from the natural facilities of the country 
they escaped in great numbers, and some of them fled 
to the woods and mountains and stayed there,' and so 
went out of civilisation for good and all. 

But were they not better off than those in prison or 
penal servitude ? As a class, they were beyond measure 
happier than the inmates of any walled-in penal institu- 
tions. In the early days the struggle was mainly with 
nature, for food and shelter, when master and slaves con- 
tended together in common cause. In later times the 
serfs' position grew worse in some ways from their associa- 
tion with the down-trodden negro slaves ; on the other 
hand, they gained advantages from some later laws. 
Except in those cases where they served under the worst 
masters, their position had many aspects that were 
human and even hopeful for their future in the colonies. 
An old writer on the state of Virginia has remarked 
about the convicts that " Their being sent thither to 
work as Slaves for Punishment is but a mere notion, 
for few of them ever lived so well and so easily before, 
especially if they were good for anything." " These are 
to serve seven and sometimes fourteen years and they, 
and servants by indenture, have an allowance of corn 
and cloathes when they are out of their time." * 

As soon as they (the convicts) were landed in America, 
says another author,' they were no longer convicts but 
servants by indenture or custom of the country, and at 
the end of their term of bondage it was the custom to 
give them the plant to start with," including raiment, 
tools, and implements, and also three barrels of corn.' 

1 By an Act passed in Virginia in 1670 servants when captured were 
to be severely flogged by every constable through whose district they 
were conveyed on the way back to their masters. 
Hening, ii. p. 278. 
-* Ballagh, White Servitude, p. 52. 
^ Fiske, p. 189. 

McCormack, p. 106. 

* Hugh Jones, The Present State of Virginia, p. 53. London, 1724. 
^ McCormack, p. 104. 

• Ibid. p. 24. 

' Hammond, L. and R., p. 8. 



BANISHMENT 123 

Sometimes a grant of fifty acres was added ; and in any 
case land was obtainable easily.' In the year 1690 
Governor Howard directed that every servant should 
receive a patent of fifty acres in fee on attaining 
his freedom. So that a man or woman had a real 
chance to retrieve past faults or misfortunes and was 
not merely cast forth to attempt the (almost) im- 
possible. And in consequence many did well, and out 
of the fifty thousand or more who had been sentenced 
to transportation ' some rose to attain high honour and 
position.' 

Australian Period. — The outbreak of war with our 
American Colonies in the year 1775 and their Declaration 
of Independence in 1776, was to have far-reaching con- 
sequences for all English prisoners. The broad Way of 
the West, the only outlet for the stream of convicted 
exiles, was to be closed by impassable barriers, and soon 
it began to silt up at home in ever-increasing volume, 
and no one knew how to deal with it. Some very wild 
proposals, indeed, were made : the convicts were to be 
exchanged for Christian slaves of near Eastern nations.* 
It was proposed to have them delivered over — as soldiers 
and food for powder — to Foreign Powers; and though 
this plan was not approved of by a House of Commons 
Committee, it duly reported that such a course would not 
be unprecedented.* West Africa was looked upon as a 
likely spot, whence but few returned. 

In the year 1782 * three men-of-war escorted a trans- 
port containing 300 convicts to Cape Coast Castle, West 
Africa, where they were enlisted as soldiers. Twenty 
or thirty died on the voyage, many deserted over to the 
Dutch, and a score seized a Portuguese ship and sailed 
in her away out to sea to be heard of no more. Nearly 
all the others died or escaped, so that but three were 
found where they had been landed, in the year 1785. 

1 Ballagh, Servitude, pp. 78, 84, 85. 

2 Lang, Transportation, p. 39. 

3 Fiske, p. 186. 
McCormack, p. 79. 

' Marion Phillips, A Colonial Autocracy, p. 2. London, 1909. 
s Commons Journal, vol. xl. p. 1162, a.d. 1785. 
s Ibid, p, 959. 



124 A HISTORY OF PENAL METHODS 

There appear to have been several outposts and garrisons ' 
made up of such convict soldiers round Goree, Sierra 
Leone, and regions adjacent. Thither were sent many 
pro-British negroes from Northern America and returned 
slaves from various places, including 400 masterless 
blacks deported from England ; ' also strangely enough, 
sixty prostitutes out of London, who were to be made 
" honest women " through marriage with some of them ' ; 
however, the African fever destroyed these unfortunates. 

The island of Lemane,* 400 miles up the Gambia river, 
was spoken of as a Settlement,^ and H.M.S. Nautilus 
was sent to explore the south-west coasts * of the conti- 
nent, but found nothing promising. Meanwhile the prisons 
at home were packed with prisoners,' many of whom, 
though sentenced to transportation, were kept in the 
gaols for two or even three years longer," and " being 
closely ironed, they could not walk," explained My Lord, 
the Minister in the House of Commons.' 

In 1776 the county authorities were told to prepare 
and enlarge the gaols to meet new conditions,'" an order 
to which they do not appear to have paid much atten- 
tion. And as there was still not room enough within 
walls, new Acts were passed from the year 1776," authoris- 
ing that prisoners, failing the possibility of their being 
transported, should be kept upon hulks. These, as their 
name implies, were old sailing-vessels, generally men-of- 
war, permanently made fast in rivers or harbours ; within, 

1 See Diet. Nat. Biography, article "Charles O'Hara." 

Horace Bleackley, Distinguished Victims of the Scaffold, pp. 115, 122. 
London, 1905. 

J. D. Lang, Transportation, p. 14. 

Historical Records of New South Wales, vol. i. pp. 6, 7. Sydney, 
1892. 

" H. H. Johnston, History of the Colonization of Africa, p. 107. 
Cambridge, 1899. 

3 Ibid. p. io8. 

* Commons Journal, vol. xl. p. 955. 

^ G. B. Barton, History of New South Wales, p. 22. London, 1899. 

^ Historical Records N. S. W., p. 14. 

' Vide Lord Sydney, letter to the Lords Commissioners of the 
Treasury, August, 18 1786, Historical Records, pp. 14, 281. 

' Commission of 1837. 

' Commons Journal, vol. xl. p. 954, a.d. 1785. 

^"16 Geo. III. c. 43, sec. xiii. 

" 16 Geo. III. 1776. 
19 Geo. III. c. 74, 1779. 
24 Geo. III. c. 12, 1783. 



BANISHMENT 125 

they were as like the old-fashioned prisons as possible, 
being crowded, dirty and verminous, with the men and 
boys all in irons, often in double irons, for greater 
security.' 

Those who were able to do rough work were employed 
on shore on various dockyard tasks, such as digging and 
dredging, and worked the same number of hours as the 
free labourers.' They were allowed some beer ; ' (with- 
out which nobody in those days was considered able 
to live !), generally small beer, a weaked variety, when 
they were set to do anything specially arduous, and when 
they got back to the ship at evening they appear to have 
had a good deal of freedom in spite of fetters ' and to 
have been allowed a little tobacco with which to console 
themselves.' There prevailed, indeed, the usual stagna- 
tion of prison life, particularly for those who were unable 
to go outside with the land parties ; bad language, some 
pilfering, and occasional violence, both by convicts and 
overseers. 

The former' were all liable to be flogged with a severe 
sort of cat, to the extent of two dozen lashes,' but applica- 
tions of the birch ' were common enough and were not 
considered Worth noticing or recording. There were a great 
number of feeble degenerates placed on board,' including 
some dazed and deadened by solitary confinement sent 
out from MUlbank and other prisons ; and there were a 
good many palpable lunatics on the ships as well, who 
were often troublesome " and who were soundly flogged 
just like other captives ; the authorities evinced neither 
surprise nor objection to the presence of mad people," 
only the very violent ones being sent to asylums, and the 
condition of these has been already described.'* 

1 J. H. Vaux, Memoirs, p. 261. London, 1827. 

2 Reports and Minutes of Evidence on the Hulks at Woolwich, p. xix. 
London, 1847. 

3 Report of the Select Committee on Secondary Punishments, p. 47. 
London, 1831. 

* DuCane, Punishment, pp. 120, 121, 

5 Report of 1831, p. 48. 

6 Report on the Hulks, 1847, p. xix. 
' Ibid, evidence, p. 323. 

» Ibid. p. xviii. 

» Report of 1847, pp. xxvi, 254. 

1° Ibid. p. xiii. 

11 Ibid. p. XV. " In Chapter III. ante. 



126 A HISTORY OF PENAL METHODS 

The prisoners of the hulks were, as usual, sadly 
neglected. Upon the hospital ship at Woolwich, | for 
instance, neither towels nor even combs were provided, 
and most of the patients were infested with vermin. 
Whenever new cases had to be taken in, the previous 
occupants of the beds were turned into hammocks, and 
then the recent arrivals used the old sheets, which had 
not been changed.' and some of the sick, especially if 
insane, lay in a horrible condition of filth and wretched- 
ness. The senior medical officer of the hulks on the 
Thames had a private practice to distract his attention, 
and the assistant surgeon was not a qualified man at all, 
but a medical student who was working for his degree.' 
Among the criminals, lunatics, feeble-minded, and out- 
casts of all kinds who were cooped up for periods gener- 
ally varying between one and seven years * (the latter 
sentence was to be equivalent to fourteen years' trans- 
portation ; all persons respited after sentence of death 
were to be specially dealt with by the Home Secretary) 
were young boys. An old table gives the number upon 
the hulks at that time, and we find the record of : one 
child of 2, two of 12, four boys of 14, four of 15, and 
altogether twenty persons less than 16 years old.' About 
1824 they appear to have placed the boys on a special 
ship, the hulk Euryalus, and there the youngest 
" villain " was nine years old ; " some of the boys, 
the inspector reported, " are so young that they can 
hardly put on their clothes." ' Two-thirds of them are 
described as having been natural or neglected children. 
The Government had a place for at least a few of the 
Nation's babies, in convict prisons. For some thirty 
years after their ' inception the hulks received a large 
proportion of the condemned,' and were used until 1858, 
or between eighty and ninety years.'" 

' Report 1847, p. 15. 

2 Ibid. p. XV. 3 Ibid. p. xxx. 

* See 19 Geo. III. c. 74. 

^ A. Graham, Report on Hulks to the House of Commons, 1 8 14. 

* Report Select Committee on Secondary Punishment, p. 51. 
' Report of 1831, p. 52. 

' DuCane, Punishment, p. Ii8. 
' Royal Commission of 1863, Report, p. 13. 

" DuCane, p. 123. There was a hulk employed at Gibraltar until the 
year 1875. DuCane, p, 118. 



BANISHMENT 127 

For some ten years the prisons and hulks ' had been 
filled up and overcrowded with prisoners. Lord Sydney, 
writing on August i8, 1786,= complained that the gaols 
were overflowing with captives who had accumulated 
since our loss of America. The oligarchical Govern- 
ment would most willingly have consigned the convicts 
to the devil or the dust destructor, had such methods 
been feasible ; in actual fact, it was intended to shut 
them up, and huge cell-prisons were being planned in 
which to immure them. 

In the year 1770 Captain Cook had seen and examined 
the fringe of the eastern coast of Australia, and presently 
people thought of that great lone land,' away upon the 
farthest rim of the globe, and prepared to send convicts 
there. In the year 1786 the Government selected Naval 
Captain Arthur Phillip to take command of an expedi- 
tion.' He appears to have been a man of high character, 
and, for those times, not devoid of humanity. ' ' I doubt, ' ' 
he wrote, " if the fear of death ever prevented a man of 
no principle ^ from committing a bad action," Yet though 
he had found that men were never deterred from desperate 
deeds by fear of being executed for them, he seems to 
have fancied that they might be appalled at the threat 
of being sent away to be eaten ! At any rate, he made 
the extraordinary proposal — which, as far as I know, was 
never once acted upon — that if any of the people under 
his charge should be convicted of murder or another 
offence, they should be kept in bonds until they could 
be handed over to the New Zealand savages to be killed 
for meat." 

But, as is usually the case with every form of primitive 
vengeance, something very similar had been tried before. 
In his regulations for the crusading navy, made out in 
the year 1190, King Richard ' ordered that if any man 

1 Commons Journal, vol. xl. p. 964 a.d. 1785. 

2 Historical Records N. S. W., vol. i. pt. 2 p. 14. 

3 This course was especially urged by Mr. J. M. Matra, for whose 
proposals see Historical Records, i. 2, p. 7. 

* Diet. Nat. Biography. 

^ Historical Records, i. 2, p. 52. 

^ " Qui hominem interfecerit, cum mortuo legatus projiciatur in 
mari, si autem in terra interfecerit, cum mortuo legatus in terra in- 
fodiatur." — ^Benedict of Peterborough, Gesta Regis Ricardi. 



128 A HISTORY OF PENAL METHODS 

on the ships committed a murder, he should be bound to 
the victim's body and thrown overboard, while if the 
deed had been done on shore, the aggressor was to be 
buried alive with the corpse, and this was a fate which 
seems even more horrible than being served up to make 
a canniballic holiday. 

Captain Phillip when he was in command employed no 
strange or specially monstrous punishments, and made 
only moderate use of those of the period, which were, 
however, severe and sanguinary. Upon his appointment 
he proceeded, like the good sailor he was, to organize 
the equipment of the ships that were to set sail ; mean- 
while the convicts were gradually collected in the Thames 
and at Plymouth and Portsmouth and placed on board, 
all the men in irons.' Some of them, we are told, were 
confined to bed on account of the cold ' — it was early in 
the year 1787 — against which their " wretched clothing " 
gave no protection ; ' others through enfeeblement and 
depression occasioned by long periods of imprisonment in 
the gaols, but many of them looked forward to their 
long journey hopefully.' 

The various prison authorities of those days moved in a 

very leisurely manner, as is their habit, and some of the 

convicts were kept on board ship for nearly four months 

upon salt provisions.^ At length they got together 564 

male and 192 female prisoners," or in all 756,' and placed 

them on board six transports escorted by two vessels 

of war and accompanied by three store-ships.' Along 

with the human freight were sent a large number of 

farmyard animals, including horses and cattle,' besides 

seeds, implements and tools ; and the expedition, which 

was to go down in Australian history as the First Fleet, set 

forth in the month of May in the year 1787. 

' Watkin Tench, Narrative of the Expedition to Botany Bay, p. i. 
London, 1789. 

2 John White, Journal of the Voyage to New South Wales, pp. 2, 4. 
London, 1790. 

3 Some of the convicts were very nearly naked : see Phillip to Nepean, 
Records, i, 2, 112. 

* Tench, p. 2. b John White, Journal, p. 5. 

• David Collins, An Account of the English Colony in New South 
Wales. London, 1798. 

' Collins, p. III. 

» Griffiths, Millbank, p. 243. 

' Charles White, Convict Life, p. 10. Bathurst, 1889. 



BANISHMENT 129 

After a voyage lasting eight months/ 1030 persons 
arrived at what is now the great city of Sydney in the 
year 1788.^ At first there was the hard, but healthy, 
struggle with nature in which all laboured ; there stretched 
before them a continent to be conquered, and honest 
Governor Phillip possessed but a tatterdemalion army 
under his orders. Rough soldiers ; ' rapacious and un- 
scrupulous officers, who, in later times, as trading 
monopolists, exploited the colony ; * and the untrained 
and largely defective crowd of the convict outcasts.^ 
But he was a British sailor and got to work/ 

Composed of such elements, it is not surprising that 
the little community was sometimes inclined to become 
criminous and disorderly, and offenders were flogged 
with unsparing severity.' A condemned man with the 
hanging-rope actually round his neck ' was offered his life 
to be made executioner, and after some hesitation he 
accepted the post. A primitive prison was put together 
with logs ; ' a patrol made up of convicts was organized 
as a watch," and six marines were captured and sternly 
hanged for robbing the public store ; " some convicts were 
afterwards hanged for the same offence." 

Famine at one time threatened the settlement ; " in 
February 1790 there were not four months' provisions 
left even upon half -rations, and all the men," including the 
Governor, shared the same allowances quite impartially." 

1 GrifSths, Millhank, p. 243. 

' Collins, p. 6. 

'" Charles White, Convict Life, p. 78. 

* Report of the Select Committee of 1812, p. 4. 

' The greater part of the 102nd Regiment, or New South Wales Corps, 
disembarked in June, 1790. Vide Official History of New South Wales, 
p. 22. Sydney, 1883. 

Historical Records, vol. i. pt. 2, p. 353. 

Lang, Hist. Acct. of N.S.W., p. 47, etc. London, 1852. 

' Historical Records, vol. i. pt. 2, p. 359. 

^ John White, Journal, pp. 55, y6, 129, 159, 216. 

° Ibid. p. 129. 

' Charles Wliite, Convict Life, p. 234. 

^^ Historical Records, vol, i. pt. 2. p. 288. 

'"^ 'iohnHmiteT, Historical Journal, -p. i^S- London, 1793. 

1^ Records, vol. i. pt. 2. p. 297. 

13 Lang, Hist. p. 34. 

'* Historical Records, vol. i. pt. 2, p. 327. 

" A wealthy merchant declared that for three years under Phillip 
he all along expected to die of starvation. — Lang, p. 38. 

9 



130 A HISTORY OF PENAL METHODS 

So feeble had the little garrison grown from want of 
f ood,^ that Government work was temporarily suspended 
or allowed to slack down, and each man was told to do as 
much as he could, while all hunted and fished for their 
very dinners. Relief at length came in June 1790.^ 

Meanwhile, just about this period (1789) on the hulks 
at home, the convicts continued to accumulate more 
and more,' and might be kept two, three, four, or even 
five years upon them * (or in the prisons), although they 
had been sentenced to transportation, ^ and the authorities 
hastened about dispatching the second fleet. Where the 
hulks were full, they used to select, in the first place, 
people supposed to be under fifty years of age,' and out 
of these, those with the longest sentences, or who were 
the most troublesome. The required numbers were 
made up with seven-years men, and occasionally, although 
not frequently,' with young boys of fifteen and under.' 

The women convicts were taken without any special 
selection, provided they appeared to be below the age of 
forty-five.' Convicts above fifty were not supposed to 
be sent out to the colony,'" but I fancy that most of those 
in good condition managed to go, since we read that the 
aged and infirm were greatly tried by the hardships 

' Watkin Tench, A Complete Account of the Settlement at Port Jackson, 
p. 42. London, 1793. 

2 Lang. pp. 39, 40. 

Barton, Hist. i. p. 250 (ed. 1889). 

Tench, p. 49. 

' Historical Records, vol. i. pt. 2. p. 281. 

* Report Select Committee on Transportation of 1837, p. 294. 

^ Tench, Complete Account of the Settlement, p. 80. 

^ Committee of 1812, p. 9. 

' A Graham, Report on Hulks to the House of Commons 1814, p. 215. 

' A convict of fifteen on Norfolk Island was given 100 lashes for 
stealing rum. Vide J. Hunter, Historical Journal, p. 311. 

See also L. Macquarie, Letters to Viscount Sidmouth, pp. 35, 44. 
London, 1821. 

In later times the boys were sent out in ships apart from adults, 
and a special prison was founded for them at Point Puer, Van Diemen's 
Land, in 1834. Vide Select Committee of 1838, pp. 216, 218, etc. 

James Backhouse, Visit to the Australian Colonies, p. 57. London, 
1843- 

On one occasion a child of seven was transported for life, another 
of ten arrived in Van Diemen's Land in 1829 after three years' im- 
prisonment. See John West, History of Tasmania, vol. ii. pp. 246, 247, 
etc. Launceston, 1852. 

' Report of 1812, p. 10. 

1° Report of 18 12, p. 77. 



BANISHMENT 131 

of the long journey.' Those who were really considered 
too old or too ill would be left to linger in hulks and 
prisons until they had served their terms, ^ or were par- 
doned, or till they died ; for nobody cared about them. 

The voyage out was looked upon by the exiles with 
varied feelings.' The sturdy and adventurous longed 
for it, both as a relief from the stagnation of prison,* and 
as a real opportunity for another start ; but to the timid 
and the sensitive, especially women,' or those who had 
marriage ties or children at home, the distance that lay 
between them and their unexplored destination, which 
thenceforth would sever every human bond of love and 
memory, must have appeared almost as far and final as 
that unknown gulf of space and darkness which yawns 
beyond the limits of the grave. 

The Second Fleet then was got together, and the ships 
straggled into Port Jackson in June 1790.' The con- 
victs had this time undergone horrible sufferings, having 
fallen into the hands of rascally contractors who were 
paid an allowance for each man embarked,' and when 
people perished there were less mouths to feed and more 
would remain over to be disposed of." It is said, too, that 
deaths were sometimes concealed by the other convicts, 
so that they might obtain the rations of the deceased ; 
as it was, many of them were starved to death." 

The usual weight " of the irons employed on ship- 
board was 3^ to 4 lb." and consisted of a chain of moder- 
ate length ending in a ring fitting round the ankles, 
which was mostly hitched up to the waist-belt.'^ But 
the present contractors had previously been employed 
in the Guinea slave trade — then quite a respectable 
occupation — and had retained the use of the old slave 

' J. T. Bigge's Report, 1822, p. 9. 

2 DuCane, Punishment, p; 125. 

3 C. A. Browning, The Convict Ship, p. 250. London, 1847. 
* Tench, Narrative of the Expedition, p. 2. 

' Lang, Transportation, p. 22. 

« Historical Records, vol. i. pt. 2, pp. 355, 367. 

' C. White, p. 106. 

« Hist. Records, vol. i. pt. 2. p. 367. 

' Lang, Hist. p. 41. 

1° Grif&ths, Millbank, p. 270. 

" C. White, p. 83. 

" Hist. Records, vol. i. pt. a, p. 367. 



132 A HISTORY OF PENAL METHODS 

irons, which consisted of ankle rings joined by a solid 
bolt some nine inches long,' which permitted merely a 
cramped shnffle.' 

In the well-managed ships both before and afterwards,' 
the chains were removed after the first week or fortnight • 
of the voyage from England,' but on the Second Fleet 
the shackles were not removed until it was within a 
few days of the journey's end,' and the unfortunate 
prisoners were penned down below. 

Often they were drenched to the waist by the breaking 
seas.' When the Neptune. Scarborough, and Surprise 
entered Sydne}' Harbour, the Chaplain, Mr. Johnson, 
climbed on board the last-named. " ' Went down amongst 
the convicts," he ^^Tites, " where I beheld a sight truly 
shocking to the feelings of humanity — a great number of 
them lying, some half, and others entirely naked, without 
either bed or bedding, unable to turn or help themselves. 
Spoke to them as I passed along, but the smell was so 
offensive that I could scarcely bear it.' I then went on 
board the Scarborough, and proposed to go down amongst 
them, but was dissuaded from it by the Captain. The 
Neptune was still more wretched and intolerable, and 
therefore I never attempted it." The convicts some- 
times concealed the fact of a death amongst them, in order 
to devour the dead man's rations, and then each hidden 
carcass added its quota to the pestilential atmosphere.' 

1 Hist. Records, vol. i. pt. 2, p. 367. 

*, I have seen very similar fetters at a prison in Slorocco, tlie inmates 
of which, however, were probably less miserable than the convicts in 
"model" European establishments. 

5 Tench, Narrative of the Expedition, p. 7. 

* GriiJiths, Millbanh, p. 400. 

^ J. T. Bigge's Report, 1S22, p. 3. 

® The practice, however, varied enormously : some masters retained 
the irons for the greater part of the voyage and never allowed more 
than half the convicts to be on deck at a time for fear of what they 
might do. Others, like Dr. Browning, employed neither irons nor 
whips ; when he was sick he had his bed placed down in tlie convict 
hospital, where they nursed him devotedly. Vide Bigge, p. 3. For 
death-rate on the Hillsborough, see Report of 181 2, p. 18; Appendix, 
For allusion to the General Hewit, Surrey and Three Bees, in 18 14. see 
Bigge, Report, p. i. ^\'ith reference to tlie Friendship and Chapman, 
see Phillips, pp. 175, 177. For reference to Hercules and Atlas in iSoj, 
see G. W. Rusden, History of .-ittstralia, pp. 392, 393. London, 1883, 
etc. For Dr. Browning, see Convict Ship, p. 8, etc. 

' Johnson to Thornton, Hist. Records. 

» Ibid. » Ibid. 



BANISHMENT 133 

" Some of these unhappy people died after the ships 
came into the harbour before they could be taken on 
shore. . . . The landing . . . was truly affecting and shock- 
ing ; great numbers were not able to walk, nor move 
hand or foot ; such were slung over the ship's side in 
the same manner as they would sling a cask, a box, or 
anything of that nature. Before their being brought up 
to the open air some fainted, some died upon deck, and 
others in the boat before they could reach the shore. When 
they came on shore many were not able to walk, to 
stand, or to stir themselves in the least, hence, some were 
led by others. Some creeped upon their hands and 
knees. . . ." ' The existing sick at Port Jackson had 
been under fifty ; the new comers swelled the list up to 
close on five hundred.^ 

In March 1791 Governor Phillip ' commenced to make 
grants of land to certain prisoners who had served their 
time, the usual amounts being thirty acres * for a single 
man and fifty acres for such as were married," with ten 
acres more for each of their children. They were also 
to receive tools, seeds,' and Government rations for 
the first eighteen months.' 

In March 1791 ' a Mr. Scheffer, who had come out as 
a superintendent of convicts, received 140 acres of land 
and had also four convicts assigned to him. Convicts 
were also bestowed on the settlers ' who arrived on 
January 16, 1793." In the course of a year the demand 
for convict labour both on the part of the Settlers — some 
of whom received a number of convicts proportionate 
to the amount of land which they held '' — and of the 

' Hist, Records, p. 387. 

2 Phillip to Grenville, July 13, 1790- 

' M. Phillips, Colonial Autocracy, p. 62. 

* Some of the convicts received only twenty acres. 

" Instructions from the Crown to Governor Phillip, April 25, 1787. 

Hunter, Journal, p. 537. 
« C. White, p. II. 

Tench, Complete Account, p. 149. 
' Hunter, Journal, p. 537. 

Hist. Records, i. 2, p. 540. 
8 Tench, Complete Account, p. 152. 
» Official History, p. 23. 

1" More immigrants came in 1796, and a free settlement was begun at 
Portland Head in the year 1802.— Lang, Hist. p. 40. 
" C.White, p. II. 



134 A HISTORY OF PENAL METHODS 

Emancipists (i.e. prisoners who had earned their freedom 
and land-grants) developed enormously, and ultimately 
exceeded the available supply.' 

We appear now to have arrived at a period in which 
the circumstances of those transported to Australia 
strongly resembled those on the American Plantations 
as they existed in the previous century. Yet they 
differed widely : in Virginia the convicts ceased to be 
convicts and were turned into indentured labourers or 
leased slaves. They were poured, as it were, into the 
solid matrix of a settled society. In Australia, for a long 
period, the prisoners themselves were the population ; 
the only others present being their natural enemies, the 
British officials sent out to govern them. In Virginia 
the practical standard of values and currency medium 
was tobacco: men were paid in tobacco units and 
also were fined in them.^ Now, in New South Wales ' at 
first it was alcohol, much as gin still is, in some parts of 
West Africa.* 

The spirit generally sold was either Bengal or Jamaica 
rum ; " wages were paid in this ; ° lands were purchased 
therewith.' Rich pastures, or ground on which streets 
were afterwards builded, were sold in drink and bought 
for so many gallons by crimps and speculators." A wife 
upon one occasion went for four gallons, but the value 
of wives is an uncertain criterion ; they have been sold 
or exchanged in the midland towns for half-crowns. We 
get a clearer idea of this fluid currency from the following, 
which appeared in the Sydney Gazette January 19, 1811 : 
" Notice of a reward for each whole skin of a native dog 
[a Dingo, no doubt]: one gallon of spirits or one pound 
sterling. Half a gallon of spirits or ten shillings sterling 
for every skin of a native pup." ' 

1 Griffiths, Millbank, p. 269. 
^ Lang, Hist. p. 92. 

^ The Bank of New South Wales was opened for business, and issued 
notes ranging in value from 2s. 6d. to £$ in 1817. Phillips, p. 162. 

* PhiUips, p. 19. 

= M. Phillips, p. 96. 

• Report of the Committee on Transportation of 1812, p. 5. 

' R. Therry, Thirty Years' Residence in New South Wales, p. 71. 
London, 1863. 

Phillips, p. 19. 
' Therry, p. 72. 
° J. O'Hara, History of New South Wales, p. 373. London, 1817. 



BANISHMENT 135 

Though the main reason for the prevalence of this 
objectionable medium of exchange is to be found in the 
utter absence of money/ so that transactions had to be 
carried on by means of barter of some kind or other ; ' 
yet this ready acceptance of spirits as a standard of 
value shows the demand for them. Indeed the whole 
colony — composed as it was at first of just the two 
classes most given to drinking,' the military and the 
prisoners in their charge — gave itself over to orgies of 
drunkenness ; and consequently crimes of violence, 
squalor and the deepest degradation were thoroughly 
rampant throughout the community. 

These conditions were destined to endure for many 
years, being, of course, at their worst in the city and 
townships, and least destructive in the " back blocks" 
up country, where both the masters and the convicts 
assigned to them led more primitive lives. As succeed- 
ing shiploads of convicts came, and fresh batches of 
exiles were landed at Sydney's quays, a certain number 
were always claimed by the Government for the public 
works. This branch was not at all popular with the 
convicts, and was avoided whenever possible, * especially 
by the mechanics and skilful workmen.'' 

The hours of labour were light in the early days,' being 
from six to three — we shall have to speak of the penal 
gangs later on. The men were generally clad in grey,' 
and were supposed to be housed and locked in barracks 
at night,' unless they got special leave to sleep in the 
town, which a great number often managed to do.* 

The rest were assigned as servants to such as applied 
for them." They wore no distinctive dress when in 
private hands, but where they went was as uncertain as 

1 " In the early days there had been no metal coinage at all." 
Phillips, p. i6o. 

2 Report of the Committee of 1812, p. 4.' 

3 Phillips, p. 17- 

* Report of 1837, p. 300. 

* Bigge, Report, p. 13. 

« Report of 1812, p. 11. 

7 Griffiths, Millbank, p. 289. 

» Report of the Committee of 1837, p. 29. 

« Griffiths, Millbank, p. 280. 

" Phillips, p. 73- 

Griffiths, Millbank, p. 289. 



136 A HISTORY OF PENAL METHODS 

what they were.^ Some got to friends and associates in 
the city.^ Some even contrived to be assigned to their 
wives,^ when the latter had followed them and possessed 
the means. Others might be sent to the distant stations 
up country to be shepherds and labourers ; and whenever 
they were delivered over to brutal masters, they served 
as black slaves or dumb beasts of burden, having as little 
hope of redress or rescue as ill-used dogs.* 

The masters were, in practice, all-powerful : many of 
the employers in the country districts were magistrates, 
and though they might not flog their own convict ser- 
vants, ° they were always able and wOling to oblige one 
another and order the lash for their neighbours ' culprits 
or victims, when they were brought before them.° In 
fact it has been officially admitted ' that the assigned 
convicts were completely at the mercy of the master 
and the household, and indeed of anybody set over 
them ; ' a man once received fifty lashes for failing to 
take off his hat to a magistrate on the road,' and another 
was sentenced to do ten days' treadmill for insulting 
demeanour towards Mr. Mudie," an employer who 
had shortly before been rebuked by the Government 
for his harshness, and who, with a number of others, 
was removed from the magistracy. 

They could complain, of course — a mouse may run to 
the cat next door if it likes ; but officials generally and 
country magistrates — neighbours — particularly, stand by 
their order, and they would only have received harder 
treatment for doing so." Beyond doubt there existed 

> Report Select Committee of 1837, p. 5. 

2 T. H. Braim, Hist, of New South Wales, i. p. 242. Lond., 1846. 

3 Griffiths, Millbank, p. 291. 
Therry, pp. 46, 47. 

* Occasionally, however, some local Thwackums were removed 
from the Bench. Vide Therry, p. 177. 
Charles White, p. 215. 
Brain, vol. i. p. 254. 
^ Vide 3 Will. IV. No. 3, sec. xxix. 

^ Eric Gibb, Convict System in Australia, p. 19. London, 1885. 
Therry, p. 48. 

' James Mudie, Vindication. 
Report of iZi7, p. 286. 
8 Griffiths, Millbank, p. 286. 
' Therry, p. 43. 
1° Mudie, Vindication, p. 81. 
11 Therry, 46, 47. 



BANISHMENT 137 

grave abuses and evils in the colonial life that might 
have been so open and healthy ; and the worst social 
weeds had their roots in alcohol. But all the cruelty 
and viciousness we have heard of could not altogether 
outweigh the natural advantages of the situation. Com- 
pared with the prisoners confined in the gaols and hulks/ 
and with those turned adrift ' with the broad-arrow 
brand of criminality upon them' — for people in those 
dark days knew less, cared less, and, perhaps consequently, 
dogmatised more harshly about "felons" than we do 
now — compared even with the machine-driven factory- 
slaves, and with some of the small house-drudges in the 
England of those times, the chances of the transported 
convicts were distinctly more hopeful. 

We can see in our minds the clustering convict crowd, 
composed of nearly all sorts and conditions, upon the 
ships. Many would certainly be broken down and 
defective creatures (sub-normal).' Of the whole, the 
vast majority would of course be thieves — using that 
word in its widest sense : smooth pickpockets, rough 
burglars, and the still more dangerous parasites, forgers, 
coiners, sharpers and exploiters, who robbed by brains. 
Some men of blood and violence we should have seen — 
ruffians whom bad surroundings, and especially alcohol, 
had made worse than beasts — and there might have been 
a weird little collection composed of those whom we could 
roughly call Passionates ; some of these had done dreadful 
deeds, but they would not usually be brutal or villainous 
in themselves ; in this small group, so different from the 
rest, we might have met madmen or even a superman ! = 

1 Report of the Select Committee on Transportation of 1861, p. 5. 

2 " When they [prisoners] gain their liberty no Parish will receive 
them and no Person set them to work . . . being shunned by their 
former acquaintances and baffled in every Attempt to gain their Bread, 
the danger of starving almost irresistibly leads them to a Renewal of 
their former Crime." — Report from a Committee, Commons Journal, 
vol. xl. p. 1 161, July 28, 1785. 

3 " What should a man without a character do at home when thou- 
sands, nay millions of our poor fellow countrymen . . . find it so diffi- 
cult to provide the means of subsistence throughout the year for their 
little ones ? " — The Times, April 17, 1850. 

* See Governor PhUUp in Hist. Records, i. 2, p. 355. 

" The Rev. Dr. Lang refers to a certain convict who was working in 
double irons, who could quote aptly from Lucretius ; his offence is not 
stated. — Transportation and Colonisation, p. 122. 



138 A HISTORY OF PENAL METHODS 

There would have been a great number of first offenders ; 
lads who in these days would never be sent into penal 
servitude/ and if to prison, only for very short terms, or 
to Borstal for the new course of treatment. Such cases 
are very frequently released on probation, or bound over to 
come up for judgment if called upon, which means, Don't 
do it again ! From time to time we should also have 
found a sprinkling of Politicals, Irish revolutionaries* 
of 1798, who were reprieved from hanging and sent out 
on life sentences. A few Cato Street conspirators of 
1820 — one of whom became a chief constable ! ' and in 
the course of years — for example 1811-1812, 1816-17, 
1833, etc. — a number of Luddites, and other machine 
breakers were added to the long lists of the transported 
ones. 

All these different kinds of people really had a new 
start — at any rate in the earlier period.* Up to the year 
1812 no particulars of their crimes were sent out to the 
colony. It was wiser to have no list, Macquarie con- 
sidered," lest dislikes and prejudices should be occasioned 
in particular instances ; it was better to start afresh. 
As we have stated, the convicts were assigned either to 
the Government or to private people, and they generally 
had to serve a proportion of the period for which they 
had received sentence. Thus a lifer became eligible 
to receive a ticket of leave after the lapse of eight years ; " 
a fourteen-years man after six, and a seven-years man 
after four years' good conduct. 

The state of the agenerate or subnormal was of course 
always precarious ; there were a certain number of the 
convicts who came from the " unemployable" class at 
home and who were continually falling back into crime 
from their own physical and mental infirmities. But a 
large proportion of even the unskilled elements had good 

"• In 1830 there were, in round numbers, 50,000 convicts ; in 1912 
there are about 3,000. See R. F. Quinton, Modern Prison Curriculum, 
p. 52, London, 1912 ; and his Crime and Criminals, p. 35. London, 
1910. 

2 Robert Peel to J. Beckett, Dublin Castle, Sept. 5, 1812 (Record 
Ofi&ce) ; see also Therry, p. 93. 

3 Therry, pp. 96, gj. 

* Report of 1812, p. 11. 

' Macquarie, Letter to Sidmouth, p. 57. 

* Report of 1837, p. 280, and Appendix, p. 264. 



BANISHMENT 189 

hopes before them, unless they had the misfortune to fall 
into the hands of a master whose persistent ill-usage 
shortened their lives or drove them into the Chained 
Gangs or the Penal Settlements — of which details later — 
and they might reasonably aspire to settle down on the 
land and to become respected if always humble squatters 
and citizens. Moreover the personal and emotional 
side of life was not always altogether neglected. Con- 
victs were sometimes allowed to select their own mess- 
mates,' and the authorities rather encouraged the practice 
of wives ' and families being sent to rejoin husbands and 
fathers out in Australia ' when the latter were declared 
by the Governor to be in a condition to keep and look 
after them,* a favour which we find continually being 
petitioned for in the convicts' letters " and frequently 
granted by the governing powers.' It is said that sons 
and brothers occasionally contrived to get transported 
on purpose,' in order to join their people in the new 
world. But if the unskilled workers had certain prospects, 
those of the trained and educated were very much better. 
Able men were well paid ; they were valuable to their 
masters and frequently worked their way into partner- 
ship. They also filled places in the learned professions : ' 
some became doctors,' many acted as schoolmasters ; '» 
whilst in the field of journalism, the Emancipists, led by 
such men as O'Shaughnessy and Watt, became easily 
paramount." 

In business too some large fortunes were got together, 
no doubt frequently by sharp practices. But it is more 

i Charles White, p. iii. 

2 Griffiths, Millbank, p. 291. 

3 C. White, p. 129. 

« Macquarie to Sidmouth, pp. 25, 73, and Appendix ii. p. 89. 
5 Vide Colonial Office Papers, 201, 67, 70, etc.. Record Office. 
« Letter from Lord Sidmouth to Henry Goulbum, Nov. 20, 18 12. 
Macquarie to Goulbum, Aug. 20, 1813. 
' C. White, p. 123. 

* The first convict emancipated became an assistant surgeon. — Hist. 
Records, i. 2, p. 555. 

° Tench, Complete Account, p. 44. 

1° Commission of 1837, p. 255. 

Ibid. Appendix, p. 260. 

»i Ibid, Report, pp. 235, 241 

Griffiths, Millbank, p. 292. 

R. Flanagan, Hist. N. S. Wales, p. 485. London, 1862. 



140 A HISTORY OF PENAL METHODS 

satisfactory to remember that those who were on the 
spot and able to judge considered ' that many convicts 
were really reclaimed through the new life transportation 
afforded them, and that occasionally they earned such 
good reputations as to be placed on the magisterial 
Bench.' 

But as the Colony, founded and made, as it had been, 
by convict labour,' increased in wealth and prosperity, 
it began to attract a stream of free settlers ; and though 
the American Colonists had been content to make use 
of and tolerate the gradual absorption into the Plebeiance 
of the convict servants gradually drafted over, the free 
immigrants refused to fraternize with a class tabooed, 
and declined, as far as circumstances permitted, to be in 
any way impatriated with them. At first the convicts, 
though in a far better situation than circumvallated 
prisoners,* had no rights or liberties, but as years went by, 
and their sentences terminated, the best of them sought 
to attain the status of Colonists. Through the earlier 
period the freed convicts had the place pretty much to 
themselves, the officials doubtless holding aloof, and there 
being very few other settlers. 

Thus the social friction which appeared afterwards 
must have been to a great degree non-existent, since 
the peccant Pot could scarcely complain of the nigritude 
of the criminal Kettle. But as the free immigrants 
began to arrive in augmenting numbers, things became 
different. The wise and far-seeing Governor, Lachlan 
Macquarie, appears to have known what would occur, 
and used all his influence to commend and receive well- 
conducted Emancipists and even to discourage the flow of 
free passengers. But the cleavage grew wider and deeper 
as years went by, and probably, in those times and cir- 
cumstances, there could have been no way of closing it. 
The Emancipist party is said to have arisen in 1809 ; ' 
it was not without wealth and great influence in the 
colony ; ' its press, complained the Rev. Dr. Lang, was 

1 Macquarie to Sidmouth, p. 16. 

2 Ibid. pp. 36, 38, 47. 

2 Macquarie to Sidmouth, p. 69. 

* J. Finney, History Australian Colonies, ch. 2, v. Sydney, 1901. 
'' Report Select Committee on Transportation of 1838, p. xxviii. 
" Report Committee 1837, p. loi. 



BANISHMENT 141 

" perpetually endeavouring ' to impress on the com- 
munity that the mere fulfilment of a man's term of trans- 
portation restored him ... to the same condition in 
society as the man who never had been a convict." 
^ On the other hand the Committee asserted - that 
" under a good system of punishment an offender should, 
at the expiration of his sentence, be considered to have 
atoned for his crimes, and should be permitted to com- 
mence a new career without any reference to his past 
one." This was the view upheld by Macquarie, but on 
the whole the authorities sided against the Emancipists. 
The contending parties fought fiercely for many years ; 
the Immigrants accusing the Emancipists of sharp prac- 
tices and demoralisation, and the latter charging the 
former with injustice and pharisaism. Each side said 
probably much that was true and cruel about the other, 
as enemies have a habit of doing both in Australia and in 
all parts of the globe.' Gradually, in the course of years, 
the numbers of the free immigrants crept up to,* and 
ultimately surpassed, those of the convicts emancipated.^ 
The freemen were, on the whole, made up of sounder 
and better-balanced material ; they included in their 
ranks the official, wealthier, and governing elements, 
and were continually being recruited from the people at 
home. With this great increase in the population and 
wealth, there came, as a natural consequence, the am- 
bition of Statehood. The Colony was now the country 
of its people, and they began to resent the idea of being 
known and spoken of as a mere convict settlement. A 
league was formed against it in 1830," and by 1835 the 
colonial fight against the Institution which had laid its 
foundations was in full blast.' But there was another 
danger always threatening the practice of transportation, 
and that was the watchful eye of the English Government, 
which was always afraid that it would not be penal 

1 Committee of 1837, p. 241. ^ Report 1838, p. 29. 

^ The unseemly wrangle is held to have persisted until the gold rush 
of 1851. Finney, p. 75. 

* Report Committee of 1838, p. 28. 

^ In 1834 there are said to have been some twenty-one thousand 
free immigrants, against fifteen or sixteen thousand Emancipists. 

" T. A. Coghlan and T. T. Ewing, Progress of Australasia, p. 31. 
Lond., 1903. 

" Flanagan, Hist. New South Wales, i. p. 474. 



142 A HISTORY OF PENAL METHODS 

enough.' During the first phase, the journey out, with 
its enormous mileage, its indefinite destination, and the 
utter and lifelong banishment which it appeared to 
involve, was looked upon as being in itself a great punish- 
ment.' But as the passage out grew more familiar, and as 
the poor, or " criminal," class got friends and relatives on 
the other side, no doubt the terrors of the actual journey 
abated, and Downing Street, though relieved to be 
enabled to get rid of the prisoners, was always timorous 
lest at any time, transportation should become less 
dreaded than the grim hardships of home. For there 
were lean years gone through in the land ; a great war 
had been brought to a close (1816), entailing disbanded 
armies, bread riots and misery.' Machinery had come 
in, displacing the cottage workers and filling its factories 
with white slaves ; * so that (in the absence of prisons 
which are always so much worse than anything else) 
the Government required something very infernal to be 
contrasted against such conditions of poverty. This we 
find clearly set forth by Sir George Arthur, Governor 
of Van Diemen's Land. ' ' In England, while employment 
is so scarce that the operative must starve though the 
convict is well fed and taken care of, it cannot be but 
that under every restriction, every severity of discipline 
that ingenuity can contrive or vigilance execute, the 
condition of the convict must present to the lower class 
that which they will be too apt to consider complete 
evidence of the inutility of virtue and the paramount 
advantage of vice." ^ 

Richard Whately, Archbishop of Dublin, argued on 
the same side. " Stimulated by such opinions, and likewise 
alarmed at the restiveness of the immigrants, the Govern- 
ment proceeded, about 1837, to stop the assignment of 
convicts to private persons,' alleging, amongst other 

' See Griffiths, Millbank, p. 209. 

2 Report of 1812, p. 10. 

3 Meiklejohn, Hist. ii. p. 261. 
* Therry, p. 24. 

^ Report of Committee, 1837, p. 289. 

" Thoughts on Secondary Punishment, p. 3, etc. London, 1832. 
' John Russell to Glenelg, April 15, 1837; Glenelg to R. Bourke, 
May 26, 1837. 

Coghlan and Ewing, p. 31. Finney, Hist. p. 75. 

It appears to have lingered up to 1841. — Braim, i. 257, Grey, p. 6, 



BANISHMENT 143 

reasons, its inequality of effect. But very soon the 
Home authorities went further than this,' and there 
appeared in 1840 ^ an Order in Council prohibiting the 
sending of convicts to New South Wales. 

The new destination for the convict population was to 
be Van Diemen's Land. The discipline on that island 
had been severe all along,' indeed it had proved far more 
arduous than the transported exiles expected.* But the 
Lieutenant-Governor, Sir George Arthur, ' ' had been long, 
assiduously, and successfully, endeavouring to render 
transportation a painful punishment, and to make the 
convict feel his position to be a disagreeable and degraded 
one." And Captain Maconochie, R.N., had observed' 
that " The severe coercive discipline ° ... is carried so 
far as to be at issue with every natural, and in many 
cases even laudable impulse of the human mind." Just 
the place for convicts to be " reformed " in ! And thither 
they were conveyed till they accumulated in thousands, 
entirely swamping the resources of the executive. 

About this time a new method was to be put in force 
which was called the Probation System," under which 
the convicted were to be made to pass through what 
Major Arthur Griffiths has termed " a species of crucible 
of discomfort." There were various stages to be gone 
through, the first being one of severe imprisonment.' 
The second consisted of the Government labour-gangs 
in various places.' The third gave them a pass to seek 

1 See Lord John Russell's Despatch, January 30, 1839. 

" Accounts and Papers British Museum, vol. xxxviii. 1840. 

Earl Grey, Colonial Policy, vol. ii. p. 4. London, 1853. 

Braim, Hist. i. p. 260. 

Coghlan and Ewing, p. 31. 

"Hist, of the AustraUan Settlement," Sydney Morning Herald, p. 21. 
Sydney, 1888. 

3 Report of 1837, p. 285. 

* Report of Committee 1838, p. xii. 

' Report of Van Diemen's Land, p. 9, and see Report of 1838, p. 39. 

« Braim, Hist. i. pp. 256, 258. Griffiths, Millbanh, p. 315. 

' Only those who had been reconvicted in the colony, or who had 
come out from England under life, or very long sentences, went to 
Norfolk Island, Griffiths, p. 316. 

» Certain selected convicts with not greater than seven-year sen- 
tences were to pass the preliminary period, not exceeding eighteen 
months, in one of the English Penitentiaries, and were then upon their 
arrival placed either in a probation gang, or probation pass, or at once 
on ticket of leave. — DuCane, p. 141. 



144 A HISTORY OF PENAL METHODS 

for possible work within narrow bounds. The fourth a 
wider range, with tickets of leave. And the fifth a 
conditional pardon and restored liberty.^ 

The new system was fully detailed in a despatch dated 
November 15, 1842, by Lord Stanley to Sir John Franklin,^ 
the Lieutenant-Governor of Van Diemen's Land, and was 
put in force against all the convicts who were poured 
into that island by the year 1843.' Within three years 
there were some 25,000 collected there, besides 3,000 Pass- 
holders ; * the demand for their labour was quite in- 
adequate, so that hiring gangs had to be established, in 
which the Pass men were maintained by the Government 
till they could find masters ; meanwhile they were generally 
kept in a state of excessive idleness and stagnation,' with 
all the usual bad effects resulting therefrom. 

The position of the Ticket-of-Leave men was indeed 
deplorable, " being thus thrown upon the world," ' wrote 
the Lieutenant-Governor, ' ' with nothing but their labour 
to support them, and no labour being in demand, either 
starve or steal." This was one way of creating Bush 
Rangers ; once again the community manufacttured the 
criminals it deserved. So choked was Van Diemen's 
Land with its convict masses ' that transportation there 
had to be suspended during 1847 and part of 1848, and 
a certain number of exiles were despatched, after having 
served through their punishment, to New South Wales 
and also Port Phillip. The Government even con- 
templated forming a penal colony in tropical North 
Australia,* but unhappily for the convicts the scheme 
fell through,, and they began to buUd ' ' separate ' ' prisons 
in England." 

About 1847 we find a new or second Probation System" 

1 DuCane, p. 141. 
Grififiths, p. 316. 
' Grifiitlis, p. 315. 

' W. B. Ullathome, Memoir of Bishop Willson, p. 42. London, 
1843- 

* Griffiths, p. 411. 

° DuCane, pp. 142, 143. 

* See Grey, Colonial Policy, p. 9, and Griffiths, p. 413. 
' DuCane, p. 144. 

Grey, p. 35. 

' DuCane, p. 144. 

» Grey, p. 31. 

1" Earl Grey, ii. 17. 



BANISHMENT 145 

being prepared, mainly by Sir George Grey, and about 
1848 the Government ordained ' that the first part (six 
to eighteen months — as much as could be endured by the 
average man) of all sentences which involved transporta- 
tion, should be passed in an English Penitentiary. Then 
was to come penal labour in a Home prison, or at Bermuda 
(up to 1862) or Gibraltar (up to 1875).* It was originally 
intended that after having got through their punishment 
the convicts should have been sent out to the colonies ' 
on tickets of leave, and in 1848 the Order in Council ' of 
1840 by which New South Wales had been forbidden as 
a depot for convicts was revoked, and for the next two 
or three years {i.e. 1848-49-50) attempts were made to 
revive transportation and to send exiles to New South 
Wales, Van Diemen's Land,'' and even the Cape of Good 
Hope.' 

But it was soon found that the tide in the Colonies ran 
strong against such a course. The ' ' respectable ' ' part 
of the population had become touchy on the subject of 
convicts, and did not want what has sometimes been 
called (elegantly !) attenuated sewage poured in amongst 
them ; for, rightly enough, they did not believe, in 
practice, that any real reformation could arise through 
imprisonment. The working class likewise objected, as 
they dreaded cheap labour, ' and the free immigrants did 
not wish to be mixed up with such company ; so that 
when, on June 8, 1849, the convict ship Hashemy arrived 
before Sydney with a party of " exiles," public meetings 
were organized and vast numbers protested ' — although 
there were other points of view in the upland stations. 
In the same year the Legislative Council voted an Address 
to the Queen against the revival of transportation. The 

1 Griffiths, p. 425. 
Grey, p. 23. 

2 Griffiths, p. 426. 

Royal Commission of 1879, Report, p. 10. 
2 Grey, p. 23. 
DuCane, pp. 145, 146. 
* Grey, p. 45. 

5 Committee of 1861, Evidence, p. 15. 

« From Bermuda in September 1849 : see Griffiths, Millbank, p. 437. 
■^ Grey, p. 47. 

8 Henry Parkes, Fifty Years of Australian Hist., p. 14. Lond., 
1892, 
Grey, p. 46, 

10 



146 A HISTORY OF PENAL METHODS 

opposition was so strong and well-organized that the 
Home Government had to give way. Despatches were 
sent to Sir Charles Fitzroy ^—November lo and i6, 1849 
—to say that no further contingents of convicts would 
be sent to the Colony, and the Order in Council already 
alluded to was altered again in the year 1852.^ In that 
year sailed the last convict ship for Van Diemen's Land.' 

In 1850 Western Australia, a younger colony with a 
vast area, and a population * at that time of only 4,600, 
was found to be anxious to receive convict labourers,' 
and the first batch was landed there on June 2.' The 
system to be carried out was that laid down in 1847-48, 
except that a certain number of prisoners passed about 
half their " public works" {i.e. penal servitude) period 
in the colony,' where a large cellular prison had been 
constructed at Fremantle. It was claimed that the men 
(no women convicts were to be allowed to be sent to 
Western Australia) were well conducted, moral and 
orderly, and that life and property in the colony — which 
the officials hailed joyfully as being " a vast natural 
gaol" — were perfectly safe. 

But, as we have seen, the real objections to transporta- 
tion which had been made were based upon other grounds 
altogether, and these pursued the latest Settlement and 
prevailed. So transportation to Western Australia also 
came to an end,' and no more shiploads were sent there 
after the year 1867.° 



The Punishments for Transported Convicts 

So far, the story of Transportation has shown, in my 
opinion, that it might have been, and to some extent 
actually was, the wisest way of dealing with long-sentence 
criminals. It had removed a huge, if straggling army, 

1 Grey, p. 50. 

2 Parkes, p. 19. 

3 Griffiths, p. 436. 

* Grey, Colonial Policy, p. 57. 
^ DuCane, p. 147. 

• Grey, p. 62. 

^ DuCane, p. 149. 

' Ibid. p. 154. 

' Ency. Brit. ix. ed. art. " Pris. Dis." p. 754. 



BANISHMENT 147 

amounting to more than a hundred thousand prisoners * 
from the certainty of hopeless degradation and chronic 
misery, and it had afforded them a fresh start with real 
possibilities of being restored into the Commonwealth.' 
Left at home, those placed beneath the ban of Society 
would merely have occasioned the erection of prisons 
and workhouses ; as things were, they established new 
States, and developed a Continent. But there were 
stark and terrible abuses rooted round transportation ; 
we must remember that it was carried out in a brutal 
age and under the management, at its best, of rough 
men whose hands were hard and horny with wind and 
weather, and at its worst, of barbarous martinets and 
prison officials, long since become inhuman and butcherly, 
of " creatures that once were men." 

The great prophylactic and social " remedy " of those 
rough times in which transportation took place was 
beating people in various ways. The children were beaten 
at home, the boys were flogged and birched in the schools; 
the servants were frequently thrashed in the country 
districts; the prisoners in the gaols, both men and women, 
were commonly whipped ; and all disciplined men of the 
fighting forces were knocked about until their skins 
became as red or blue as their jackets, and were some- 
times even mammocked to death.' 

1 Sir Edmund DuCane says (p. 1 1 1 ) that the total number of convicts 
sent to Australia during the continuance of the system amounted to 
134,308, but such totals as 137,161, 159,623, etc., can be made up from 
various authorities. The reader may refer to : Committee of 1838 
Report, p. 37, and Appendix, p. 372. 

Lang. Hist., p. 12. 

Coghlan and Ewing, pp. 31, 32. 

Sydney Morning Herald Hist. p. 21. 

Committee of 1861 Report, p. 16. 

> Lord Grey ascertained that in the year 1850 there were 48,000 
persons in the Australian colonies who had once been convicts, nearly 
all of whom were then maintaining themselves. — Colonial Policy, p. 76. 

^ For a few instances of fatal or tremendous floggings the reader 
is referred to : 

F. R. Skrine, Fontenoy, pp. 253, 254, 303. 

Samuel Romilly, Memoirs, vol. ii. p. 133. 

The Globe, May. 24, 1828. 

Barton, Hist., p. 229. 

A. F. Tytler, Military Law, p. 328. Edin., 1800. 

Horace Bleackley, Distinguished Victims of the Scaffold, p. 121, etc. 

F. Myers, Botany Bay, p. 22. 

daaxlesJ&Tnes'ifa.-piec, RemarksonMilitaryLaw, ■p. i$2. Lond., 1837. 



148 A HISTORY OF PENAL METHODS 

Our forefathers made their punishments to be as 
public as possible. They were not over-sensitive about 
witnessing suffering, they believed firmly in the old 
deterrence theory, and did their ^best, or worst, to make 
the law's grim terrors tangible. 

Dr. Johnson observed in the well-known passage : 
" Tyburn itself is not safe from the fury of innovation. 
Executions are intended to draw spectators; if they 
do not, they do not answer their purpose. The old 
method was most satisfactory to all parties ; the public 
was gratified by a procession, the criminal was sup- 
ported by it. Why is all this to be swept away ? " 

Keeping to facts, they found that pockets were being 
picked beneath the very gibbets on which thieves were 
being strangled. As the Act (8 Eliz. c. iv.) recites, they 
pilfered even " at the time of doing execution of such as 
had been attainted of any murder, felony or other criminal 
cause, ordained chiefly for terror and example of evil 
doers ; [the criminals] do without respect or regard of any 
time, place or person . . . take the goods of diverse good 
and honest subjects. ..." 

It was expressly ordered that convicts were to be 
whipped as publicly as possible.' Bentham desired that 
the "instructive ignomany " of prisoners should be 
witnessed by as many people as possible.' 

Hence executions were public parades and prisoners 
were flogged through the open streets. In the earlier 
period they were not condemned to receive a definite 
number of strokes, but were ordered to be flogged through- 
out certain journeys — as from Newgate to Tyburn, 
which was close to the spot which is now Marble Arch — 
and in this way the victims must have received a truly 
prodigious number of lashes, although the actual severity 
of a flogging cannot be altogether estimated from this 
alone ; much would depend upon the instrument used, 
and also upon the arm of the operator, which was apt to 
grow tired. In the brutal military floggings ' — where 
the number of lashes was regulated by the Court sen- 

•• See Report Committee of 1837, p. 348. 
2 Letter to Lord Pelham, p. 4. 

' Something of the almost incredible enormity of these service 
sentences may be learned from the pages of General Sir Charles James 



BANISHMENT 149 

tencing, or by the interference of the surgeon when the 
life-limit was approached — the drummers ^ were supposed 
to be relieved after inflicting twenty-five cuts/ and often 
after every dozen lashes ; they also practised upon in- 
animate objects to get their hands in.' 

In such times as those we may be sure the convicts 
received their share of the flagellations. Under Governor 
Phillip we read of such punishments as one hundred 
lashes for going among the women convicts on ship- 
board ; * two hundred lashes for a marine who en- 
deavoured to pass bad coin. Two men, for a violent 
assault, were sentenced to no less than five hundred lashes 
each, but, says Surgeon-General White, " they could not 
endure the whole, as they were feeble with scurvy." In 
the rough and primitive life of the colony, the cat was the 
main thing resorted to in dealings with convicts. The 
" cat," as everybody knows, was a whip, usually with 
nine lashes or " tails," but it is not always easy to make 
out its quality. It was called a ' ' cat ' ' because it was 
said to " scratch " the backs of its victims ; and indeed 
some of the mediseval whips had metallic claws.° 

Historically, there must have been almost as many 
appliances for lashing the unfortunate human body as 
there were cutting weapons to make holes or stabs in it. 
Whips have been made with three, five, six and nine tails, 
and these have been heavy or light, flat, round, or triangu- 

Napier. " In them often was the unhappy victim of such barbarous 
work brought out from the hospital three or four times to receive the 
remainder of his punishment, too severe to be borne without danger of 
death at one flogging ; and sometimes I have witnessed this prolonged 
torture applied for the avowed purpose of adding to its severity. On 
these occasions it was terrible to see the new tender skin of the scarcely 
healed back again laid bare to receive the lash. I declare that, accus- 
tomed as I was to such scenes, I could not on these occasions bear to 
look at the first blows ; the feeling of horror which ran through the 
ranks was evident, and all soldiers know the frequent faintings that take 
place among recruits when they first see a soldier flogged." — Military 
Law, p. i6o. 

i A. Somerville, Autobiography of a Working Man, p. 288, etc. 
Lond., 1848. 

2 Committee of 1837, Appendix, p. 94. 

An Australian police superintendent declared that a man could 
not properly inflict more than 150 lashes a day. Ibid. p. 89. 

3 Somerville, pp. 289, 294. 

* John White, Journal of the Voyage, pp. 50, 55, 159. 
» The old Roman flagellum . . . had sometimes three thongs with 
bone or brass knots fastened to them. Enc. Brit. xi. ed. vol. v. p. 487. 



150 A HISTORY OF PENAL METHODS 

lar, according to the time and places in which they were 
put together. Some of the most murderous whips in- 
' vented/ such as the knout of Russia (employed up to 
1845)/ the korbash or sjambok of Africa, possessed but 
one deadly thong,' or were leathern rods or wands which 
could slice like swords and kill in comparatively few 
strokes whenever the death penalty was intended with 
them. 

But keeping to the implements of our own place and 
period, we find cats were made of varying form and 
weight. The naval cat was perhaps the most formidable ; * 
it has been described as " being made out of a piece of 
rope thicker than a man's wrist,^ 5 feet in length aU over, 
three of which were stiff and solid stuff and the remaining 
two feet ravelled into hard twisted and knotted ends. 
Such was the old-fashioned cat ; but even when wooden 
handles were substituted for rope ones, it was generally 
heavier than the military'instrument." Another account 
describes a cat employed on an English merchant ship 
as consisting of " a handle or stem made of a rope 3I 
inches in circumference and about 18 inches in length, 
at one end of which are fastened 9 branches or tails 
composed of log line with 3 or more knots upon each 
branch." " 

The military cat has been described ' as " a weapon 
about 18 inches in length, armed with 9 thongs of the 
same length, each thong bearing 5 or 6 knots com- 
pressed and hardened into sharp edges till each acquired 
the consistency of horn." « Private Somerville » alludes 
to the cats employed in his regiment as having handles 
two feet in length and similar tails ; the latter being 

1 W. M. Cooper, History of the Rod, ch. xxvi. 

2 The modern Siberian instrument is the plet, a whip with a very 
short handle and three thick thongs : vide J. Y. Simpson, Side-Lights on 
Siberia, p. 218. London, 1898. 

3 Leonard Willoughby, Pall Mall Magazine, April 191 2. 
* Royal Commission of 1863, p. 108. 

' Cooper, Hisi. Rod, p. 369. 

« Alexander Falconbridge, An Account of the Slave Trade, p 40. 
London, 1788. ■ r t 

7 Cooper, p. 357. 

' The condition of the whip appears to have been considered im- 
portant and was carefully attended to. Vide Committee of 1837, p. 94, 

■ Somerville, Autobiography, p. 294. 



BANISHMENT 151 

twice or perhaps three times the thickness of whip-cord.^ 
Each tan contained six hard knots, and as there were 
nine of them, and as each knot made an abrasion, he 
calculated upon receiving fifty-four stinging cuts at every 
stroke. 

We also hear of the Double or Thief's cat being em- 
ployed " at some of the penal stations ; it is stated to 
have been both larger and heavier than the ordinary, 
and to have had a double twist in the whip-cord ; it bore 
nine tails and as many knots in each one. But besides 
all these there were doubtless a number of fancy whips 
used for flogging, and we may well believe that they 
served their purpose, for it has always been easy to hurt 
although hard to heal, since the world began. At last, 
about 1833, Sir Richard Bourke, who was Governor, 
compelled the officials, at any rate, to keep to one kind 
of cat.' This is described as having been made with a 
two-foot handle, to which were attached five lashes of 
whip-cord, each having six knots in them.* 

The authorities were allowed great powers of punishing : 
a police superintendent and justice could summarily 
order the infliction of fifty lashes on convicts ' — freemen 
had to be tried by a bench and could appeal to the 
governor • — a Bench of three justices could give up to 
three hundred ; ' away in the country a single magistrate 
could officiate as a Bench.' 

We have been talking so much about the instruments 
used to flagellate that we may now endeavour to find 
out what effects they had. 

Writing of things he beheld in the year 1829, Sir Roger 
Therry says in his Thirty Years' Residence in New South 

1 Dr. Quinton, a prison Governor, remarks that knots in the modern 
cats have now been abolished, though he had seen them in use. — Crime 
and Criminals, p. 34. 

2 Committee of 1838, p. 38. 

G. E. Boxall, History of Australian Bushrangers, p. 4. London, 
1908. 

3 Charles White, p. 504. 

* This standard instrument is said to have been prepared by Super- 
intendent Slade. Vide John West, History of Tasmania, p. 256. 

' Macquarie to Bathurst, June 28, 1813. Sec. 13, Record Office 
CO. 201, 67. 

• Phillips, pp. 70, 78. 

^ Report of 1812, p. 11. 
" Donnelly, p. 78. 



152 A HISTORY OF PENAL METHODS 

Wales : " As I passed along the road about eleven in 
the morning there issued out of the prisoners' barracks 
a party of four men who bore on their shoulders (two 
supporting the head and two the feet), a miserable 
convict writhing in an agony of pain — his voice piercing 
the air with terrific screams." ^ 

He was informed that it was " only a prisoner who had 
been flogged, on his way to the hospital." Once there he 
would be a week or ten days under treatment,^ but if the 
flogging ' was a severe one or had been inflicted with the 
heavy,* or thief's cat, he might easily be a month or 
two in the doctor's hands,'' and occasionally died from 
inflammation or shock. 

Another truly ghastly description is given in an Austra- 
lian book previously quoted. ° At a convict station of 
the interior a witness on his way to the Court had to 
pass the triangles which had been in use that day. " I 
saw," he observes, " a man walk across the yard with 
the blood that had run from his lacerated flesh squashing 
out of his shoes at every step he took. A dog was licking 
the blood off the triangles, and the ants were carrying 
away great pieces of human flesh that the lash had 
scattered about the ground. . . . The scourger's feet had 
worn a deep hole in the ground by the violence with 
which he whirled himself round on it so as to strike the 
quivering and wealed back, out of which stuck the sinews, 
white, ragged and swollen. The infliction was one 
hundred lashes at about half-minute time, so as to extend 
the punishment through nearly an hour ' . . . they had a 
pair of scourgers' who gave each other spell and spell 
about, and they were bespattered with blood like a couple 
of butchers." 

At length, about 1833, the Governor, who was Sir 

1 p. 42. 

^ Therry, p. 42. 

^ Somerville, p. 293. 

4 C. White, p. 355. 

'' Committee of 1838 : Evidence of Dr. Barnes, p. 38. 

" Charles White, Convict Life, p. 499. Compare also Somerville's 
account. 

^ The hideous knout is said to have usually taken one hour to inflict 
twenty stripes. — Simpson, Siberia, p. 219, note. 

8 Ibid. p. 499. C. White (quoted p. 123). 

See also Gibb, p. 28. 



BANISHMENT 153 

Richard Bourke, secured the passing of what has been 
called the Quarter Sessions or the Fifty Lashes Act/ 
by which a magistrate could not order the infliction of 
above fifty lashes (with the new standard cat), in lieu of 
one hundred and fifty which had been frequently given in 
three distinct floggings. This, says the Rev. Dr. Lang,' 
" naturally gave offence to the adherents of General 
Darling's policy — the colonial Tories, and a mighty 
outcry was accordingly raised." Two petitions were 
presented to the Legislative Council stating that the 
amount of punishment which the justices could award 
under the Colonial Act, 3 W. IV. No. 3, was too small,' 
and that the instrument, i.e. the new cat, was too weak.* 
Thereupon Sir Richard Bourke caused a Circular Letter 
to be sent by Mr. Alexander McLeay ° from the Colonial 
Secretary's Office on August 21, 1833, addressed to the 
police magistrates, directing them to superintend the 
forthcoming floggings personally." They presently re- 
ported that the new cat was severe enough, and sent in 
returns ' from which we may extract a few instances.' 
September 30, 1833, D. McDonald, fifty lashes; much 
lacerated, bled after twentieth stroke. J. Denison, 
twenty- five lashes ; bled much. John Orr, a boy, twelve 
lashes ; cried out much. 

Another official gives cases ' from September i to 
October i, 1833. J. Green, fifty lashes; fainted after. 
T. Holdsworth, blood at fifth lash. J. Kenneth, blood 
at eighteenth lash. E. Davis, continued crying after 
flogging was over." Other cases showed : blood at fourth 
stroke, blood at twelfth, blood at twentieth, etc., etc." 
Several boys received twenty-five lashes for feigning (?) 

1 Report of Select Com. on Trans, of 1838, p. xxxix. 
Lang, Transportation, p. 94. 

Charles White, p. 500. 

2 Transportation, p. 94. 

3 Flanagan, Hist., vol. i. p. 417. 

* Vide Citcala.1 Letter of May 18, 1833. 

5 Colonial Law Tracts, B. M. Cat. 6605. b. 17 (i) p. 13. 

« Flanagan, Hist. vol. i. p. 417. 

7 Report Committee of 1837, Appendix, p. 87. 

8 Ibid. p. 87. 

9 Report of 1837, p. 88. 
"> Ibid. p. 90. 

1' Ibid. pp. 92, 93. 



154 A HISTORY OF PENAL METHODS 

sickness : ^ many of those were from Carter's Barracks, 
which was one of Mudie's places." 

So much for the effects of the fifty lashes, which the 
magistrates had thought quite inadequate ! ' It may be 
interesting to learn that a quick flogging to give this 
number took up four minutes, * but if it was administered — 
as it frequently was— in half-minute strokes,^ it would 
occupy twenty-five, and one hundred lashes would pro- 
long the torture into nearly an hour. 

And what did it all feel like to the victims who were 
tied up ? Most probably, as with all punishments, the 
effects were unequal.' I would much rather be flogged 
than imprisoned, but in the old days the flagellated must 
have endured most terrible sufferings. 

Private Somerville, from whom we have quoted, has 
conveyed his experience. " At the first blow," he writes, 
" I felt an astonishing sensation between the shoulders 
under my neck, which went to my toenails in one direction, 
my finger-nails in another, and stung me to the heart 
as if a knife had gone through my body. The Serjeant- 
Major called in a loud voice, ' One "... The voice called 
' Four,' I felt my flesh quiver in every nerve from the 
scalp of my head to my toenails. The time between each 
stroke seemed so long as to be agonizing, and yet the next 
came too soon." ' 

General Sir Charles Napier says with reference to the 
most severe forms of this punishment : "I have seen 
hundreds of men flogged, and have always observed that 
when the skin is thoroughly cut up or flayed off the great 
pain subsides. Men are frequently convulsed and scream- 
ing during the time they receive from one lash to three 
hundred lashes, and then they bear the remainder, even 
to eight hundred or a thousand lashes, without a groan ; 

» C. White, p. 502. 

3 See also Flanagan, Hist. p. 479. 

^ The English Committee of 1837-8, however, considered that Sir 
Richard Bourke had " acted with wisdom, justice and humanity." 
Report, p. 39. 

♦ Report of 1837, p. 96. 
^ C. White, p. 502. 

* See Sir Charles Napier's remarks in his Military Law, p. 151. 
" Autobiography, pp. 288, 289. 

See also Joseph ColUnson, Facts about Flogging, ch. iii. Lend., 
1905. 



BANISHMENT 155 

they will often lie as if without Hfe, and the drummers 
appear to be flogging a lump of dead raw flesh." ^ 

It is probably the surface nerves which convey the pain, 
and after a time these may be numbed or partly destroyed ; 
also, it would appear that there is only a certain amount 
of pain that nerves can convey, and that nature thus 
circumscribes and limits the devilish deeds of men. But 
when we think on such scenes as those just described, we 
can only endorse the words of the stern old warrior, when 
he wrote that in the course of these floggings it seemed 
as though " the culprit had disappeared and the martyr 
had taken his place." ' In these days, when certain 
ignorant or forgetful people are seeking to reapply the 
lash for this act or that, I would remind them that such 
" remedies " have been tried of old.' Giving evidence 
before the Committee of 1838, Dr. Barnes observed, " I 
never knew a convict benefited by flagellation. I have 
always found him afterwards to be a more desperate 
character than before, and after the lash had been once 
inflicted he was generally among those who had it re- 
peated." * 

These rough and very sanguinary punishments with the 
cat were not, unhappily, the worst blots upon the British 
transportation system. Flogging was then so common 
and universal that, in the lesser doses," it was regarded 
as a short and summary punishment for misdemeanours 
and breaches of discipline. Magistrates, as we have seen, 
could order terrific floggings to be inflicted, and, in the 
case of convicts, over whom they possessed powers almost 
unlimited,' could also impose other and more enduring 
punishments,' such as consignment to the ironed gangs 

» Military Law, p. 163. 

2 Ibid. p. 164. 

3 Vide H. S. Salt, The Case against Corporal Punishment, p. 15, etc. 
London, 1912. 

♦ Report, p. 38 (Brit. Museum Rpts. of Committees, vol. xxii.). 

' " The fact is, flogging in this country is such a common thing that 
nobody takes any notice of it. I have seen young children practising 
on a tree as children in England play at horses." Vide Mary Carpenter, 
Our Convicts, vol. i. p. 234. London, 1864. 

• An idea as to the extent and potency of the summary jurisdiction 
may be gathered from G. B. Barton's History, vol. i. p. 393. 

T Vide 3 W. IV. No. 3. 
Committee of 1837, App, p. 54. 
Ponnelly, p. 75, etc. 



136 A HISTORY OF PENAL METHODS 

or the penal settlements, about which we shall come to 
speak presently. 

For the graver offences men were tried and judged 
by a kind of court-martial, which was composed of the 
judge-advocate ^ and (generally) six naval or military 
commissioned officers.^ 

The establishment of civil juries of twelve men was 
prepared ^ for by the Constitution Act of 1828,' and by 
the year 1833 ° we find them in action with the Emancipists ' 
permitted to serve on them but not colonially-convicted 
citizens.' The Courts of course possessed the power of 
capital punishment ; ' ropes and whips being the readiest, 
were therefore the commonest implements of repression 
in a nascent community. 

But the Courts 'had two other penalties at command, 
which were mainly reserved for those previously con- 
victed," and these were the Ironed Gangs and the Penal 
Settlements.'" 

In a country where, for a long time, there were no 
regular prisons, fetters would be the obvious method of 
restraining the prisoners. As we have seen, they were 

' See 27 Geo. III. t. 2, 1787. 

Barton, Hist. i. p. 213. 

Phillips, Colonial Autocracy, p. 58. 

- Sometimes there were only four officers (34 Geo. III. c. 45 and 
35 Geo. III. c. 18), or five officers (4 and 5 W. IV. c. 65). 

The Act 9 Geo. IV, c. 83 of 1828 provided that " until further pro- 
vision be made as hereinafter directed for proceeding by juries, all 
offences should be tried before a judge and seven naval or military 
officers." J. Quick and R. Garran, Australian Commonwealth, p. 808, 
Sydney, 190 1. 

3 9 Geo. IV. c. 83. 

* Official History of N.S.W., p. 54. 

'■ Accused persons coiild still claim to be tried before the military 
tribunal up to 1839. Finney, Hist., p. 96. 

" Barton cites the act 4 W. IV. No. 12, in his History, vol. i. p. 390. 
' Flanagan, i. p. 342. 

* Braim, i. p. 279. 

^ Persons born, or coming free into the Colony, were not, for their 
first offences, sent to the Penal Settlements, but went to Tasmania. 
Vide Committee of 1837, App., p. 306. 

R. Donnelly, Acts of Council of New South Wales, p. 70. Sydney, 
1841. 

»" Prisoners from England might be, and sometimes were, sentenced 
to commence their period of transportation in those terrible places, 
even to Norfolk Island. Vide Com. of 1837, pp. 203, 282. 

Griffiths, Millbank, p. 299. 

James Backhouse, Visit to the Australian Colonies, Appendix J, 
No. 2. London, 1843. 



BANISHMENT 1S7 

employed on board ship early in the voyage, and on land 
they served as a punishment for misconduct. Even 
Governor Macquarie, who always held out a friendly hand 
to well-behaved convicts, was sometimes severe with 
troublesome prisoners; he had gaol-gangs formed in 
1814 at Sydney,^ Parramatta, "Windsor and Liverpool 
(N.S.W.), to which a few convicts were sent for short 
periods ; they were to be clothed in parti-coloured 
garments of black and white. In the course of years the 
number of convicts sentenced to the chained gangs 
greatly augmented ; ^ they were scattered about chiefly 
up country in parties of eighty.' 

The black and white attire, already referred to,* was 
altered to a dress of yellow and brown in the later times.' 
The prisoners had their hair closely cropped and were 
shaved twice weekly." They were to work for at least ten 
hours a day,' and generally toiled on the road and quarries 
from six to six.' At night, when the sweat of the day was 
over, they were shut up in parties of twenty in four strong 
boxes or shanties built of thick timber ; at first these used 
to be within a stockade, but later on they relied on the 
sentries with their loaded guns. 

So small was the cubic area of these places, that the 
inmates could not all stand or sit together at the same 
time, unless with their legs at right angles to their bodies ; 
often the width of floor on which each could lie was only 
18 inches per prisoner.' But the most grievous part of 

' Macquarie to Sidmouth, p. 90. 

2 The system was largely extended by Governor Bourke (Griffiths, 
Millbank, p. 300). In 1834 there were about 1,000 thus placed in 
N.S.W. (C. White, p. 265), and there were some 700 in Tasmania. (Com. 
of 1838, p. xiv.) 

3 Committee of 1838, p. 251. 

* Griffiths, Millbank, p. 289. 

Committee of 1837, p. 29. 
= In.Tasmania the chain-gang men appear to have worn a yellow 
dress with the word Felon stamped over it in several places. 

Com. 1837, App. p. 54. Chained convicts in Sydney are said to 
have worn a costume of grey and yellow. Vide C. White, p. 245, and 
Therry, p. 41. 

' Com. of 1837, App., p. 81. 
C. White, p. 259. 
Com. of 1837-8, p. 252. 
7 Griffiths, Millbank, p. 300. 
« C. White, p. 137. 

» Committee of 1837-8 (British Museum, Reports of Committees, 
vol. xxii. p. 14). 



158 A HISTORY OF PENAL METHODS 

the chain-gang punishment consisted of the fetters which 
the men wore.' The chains weighed from 6 to 7 and 
sometimes 9 Ib.^ They were riveted on by blacksmiths, 
and were examined every morning and evening lest they 
should be tampered with.' 

In these they lived throughout the length of their 
sentences/ which might be six months, twelve months, 
two years, in the ironed gangs. In chains they laboured 
like beasts of burden through the Australian heat, some- 
times with legs chafed and galled by the iron clasp ; ^ and 
fastened they lay at night, though it might be with torn 
backs and much-smarting tendons after having had fifty 
lashes at the hands of the scourger, ° or twice that number 
if returned after flight. Even upon removal to hospital, 
although the parti-coloured clothing was given up ' the 
chains were kept on, by official orders ; and convicts 
were often interred in them. 

Well might Sir George Arthur declare in his evidence, 
' ' This description of punishment is a very severe one, as 
severe a one as could be inflicted on man." ' The English 
Committee said it belonged to a barbarous age. 

But there was a lower depth still — does not the abyss 
of misery always seem bottomless ? — and that we find in 
the prisons of the transported, the dreaded Penal 
Settlements. All prisons are mournful places, but these 
were among the worst that have ever been. 

There were quite a number of these places of torment 

1 Griffiths, Millbank, p. 300. 

2 C. White, p. 83. 

Additional fetters might be imposed as a punishment, or upon men 
who seemed likely to attempt to escape. Rtport, 1837, App., p. 81, 
and Com. 1838, p. 276 ; also, Griffiths, p. 398. Sometimes men wore 
a chain fastened to only one leg 

' Griffiths, Millbank, p. 300. 

C. White, p. 258. 

Com. of 1837, App., p. 81. 

* Donnelly, p. 75. 

Com. of 1837-8, p. 239 ; Bourke to Glenelg, December 4, 1837. 
' C. Whe, p. 373. 

* A prisoner out of irons was attached to each camp to flog, for 
which service he received is. gd. a day in addition to rations. Com. of 
1838, App., p. 252. 

Donnelly, p. yj. 

'' Com. of 1837-8 : Bourke to Glenelg, App., p. 252. 

C. White, p. 260. 

* Com. of 1837-8, p. 14. 



BANISHMENT 159 

scattered about, including Macquarie Harbour and the 
larger settlement of Port Arthur in Van Diemen's Land, 
and Norfolk Island in the Pacific Ocean, which was 
perhaps the deepest hell of all. There was a certain 
similarity in the prison settlements ; in all of them 
we read of brutes ill-treating the brutalised. Desperate 
ruffians as many of the prisoners had become, they 
certainly could not have surpassed some of their overseers 
in cruelty, and we can say nothing worse of the most 
dangerous convicts, than that, had they been in command 
themselves, they niight have been as barbarous as their 
governors. 

Port Macquarie — a penal settlement from 1821 to 
1833 — was a deep inlet along the western coast of Van 
Diemen's Land,^ about two hundred miles from Hobart 
Town. Access from the sea was extremely difficult : two 
small rivers empty into the bay, and across the narrow 
mouth of the entrance a bar had been formed, and the 
ocean rollers swept over it with resistless violence when 
the winds blew, or when a far-distant storm sent in a 
long ground swell. 

Approach over land appears to have been impossible 
in those days ; the place was so shut in by marshes and 
mountains, that even of the goaded and desperate 
prisoners, only some eight or nine ever escaped except 
to perish of hardships, from what has been described by 
Marcus Clarke as a life of one continual agony." The 
men worked at felling timber and dragging logs, they 
laboured in irons and were often chained together in 
gangs as well ; but it was not the work or even the place, 
so much as the brutal discipline that made life unbearable. 
" One man," says the Rev. John West,' " a convict over- 
seer, delighted in human suffering — this was his qualifica- 
tion for office." The convicts were flogged again and 
again with the heaviest sort of whips,* and were also 
punished ' by being compelled to sleep on wet rocks in 



' West, History of Tasmania, ii. p. 182. 

2 Stories of Australia in the Early Days, p. 112. London, 1897. 

2 History of Tasmania, ii. p. 183. 

* Report of 1838, p. 38. 

* West, Hist., vol. ii. p. :83. 
Committee of 1838, p. 37. 



160 A HISTORY OF PENAL METHODS 

damp clothes and fetters ; ' occasionally some of them 
drowned themselves. There were gloomy yards and 
thick-walled prison buildings on Sarah Island where the 
main body slept on return from toil, and there were not 
lacking solitary cells, to which a certain number were 
sentenced; for the authorities had learned the art of 
breaking the prisoners' minds as well as their bodies,^ 
and the more refined nineteenth-century tortures of 
cells and tread-wheels ' were added to the whips and 
fetters of the earlier periods. 

Those who have passed in a ship, as I did, from 
Sydney along the eastern coast of Tasmania, making 
for Hobart, will, as they enter Storm Bay, wherein is the 
harbour, have rounded Tasman's Peninsula. Thereon, 
from 1830 to 1877, stood the Penal Settlement of Port 
Arthur. Next to Norfolk Island it was the largest of 
the colonial prisons, having an average population of 
over a thousand prisoners.* 

The settlement was cut off from the mainland, or 
rather from Forestier's Peninsula, by a sandy isthmus 
four or five hundred yards broad called Eagle Hawk's 
Neck. This pass was always guarded by sentries who 
were further assisted by savage dogs which were estab- 
lished in stages across the passage, and even into the 
shallows on either side,'' while farther out, in the deep 
water, the sharks patrolled, ready to snap up an escaping 
convict, or, if a chance occurred, his pursuers, impartially. 
Yet men did attempt to get through occasionally, pre- 
ferring to take their chance of being eaten by sharks, 
or even, under the stress of famine, by one another, 
when in the bush, to the slow, studied cruelty which 
prevailed at the settlement. 

' Marcus Clarke, Stories of Australia, p. 113. 

An offender at Sydney was sentenced to be fastened to a rock on 
Goat Island by a chain 26 feet long, his legs being also in trumpet- 
irons (i.e. those with very long links not unlike a trombone) ; he was 
sent away later on to Macquarie Harbour. See Meliora, vol. iv. p. 12. 
London, 1862. 

2 Backhouse, Australian Colonies, p. 49. 

3 They had treadmills at Hobart — vide Backhouse, p. 33, and Com- 
mittee of 1837, p. 304 ; at Port Arthur — ^see Griffiths, Millbank, p. 323 ; 
at Norfolk Island — see Com. of 1837, p. 69 ; in Australia — see Com. of 
1837, App., p. 309, and 3 W. IV. No. 3. 

♦ In the year 1835 there were 1,172. — Report of 1838, p. xiv. 
^ Marcus Clarke, Stories of Australia, p. 197. 



BANISHMENT 161 

It is worth observing that there appears to be no doubt 
that many if not most of the dreaded bandits and high- 
waymen were driven into desperate courses by the 
cruelties to which they were subjected. Bushranging, we 
may read, was not common in Van Diemen's Land until 
the arrival of the " disciplinarian " Governor Arthur.^ 
Speaking of New South Wales, Sir Roger Therry remarks 
about bushrangers," " Of some hundreds of them who 
passed through our criminal courts I do not remember to 
have met with one who had not been over and over again 
flogged before he took to the bush." " Many," says the 
Rev. John West, " fled to the bush to avoid flagellation." ' 
" Bad masters," says a Tasmanian writer, " and severe 
dishonest magistrates,* have devoted more men to live 
as bushrangers and die on the scaffold than any inherent 
depravity of their victims." 

The deeds and exploits of these wandering bandits have 
occupied many volumes, in which will be found the 
romantic and often almost incredible accounts of their 
depredations. I am glad, for the credit of human natiue 
(always making for good in the individual and always 
at its very worst when acting in corporate bodies of any 
sort), that it would appear that few of these desperate 
quick-shooting banditti were unredeemed by acts of 
generosity and even humanity ; whilst nearly all dis- 
played a valour worthy of better usage and happier 
circumstances. In fact, from the evidence it would really 
seem that, once again, the communities obtained the 
criminals they deserved. Port Arthur, as the name of 
the place implies, was generally approached from the 
ocean, and at its harbour large and extensive quays and 
solid stone structures had been built by the convicts. 
It was a massive prison,' with walls and buildings 
containing all the nineteenth-century accessories for de- 
grading the inmates and crushing life out of them. 

1 Report of 1838, p. 41. 
Gibb, p. 90. 

2 Thirty Years' Residence, p. 43. 

3 History of Tasmania, ii. p. 130. _ . „ 
- W B Dean (Cabby), Notorious Bushrangers of Tasmama, p. 8. 
6 "The walls are like those of a Bastille, the air is damp and 

heavy ... a sort of yellow darkness."— Clarke, Stories of Austraha, 
p. 194. 
11 



162 A HISTORY OF PENAL METHODS 

The prisoners wore a dress of yellow (sometimes yellow 
and black), with strong leather caps on which were marked 
the word " Felon " at back and front.^ Most of them 
were in irons, which were usually of about 7 lb. weight,' 
and they were occasionally made fast to a log of wood ' 
by a chain about 3 feet long attached to their leg-irons, 
and consequently they were obliged to drag it about with 
them wherever they went. Some of them were even 
chained to the waU. 

There was a chapel built at Port Arthur, but it has 
been described as having been little better than an 
additional place of punishment.* The convicts had to 
half stand or crouch in separate boxes, and at one period 
their heads were muffled up in helmets of cloth which 
were pierced with eye-holes.* Perhaps the best idea 
we can get of the penal settlement is to be found in 
Marcus Clarke's account of a visit made to it in the year 
1870. It had faded then, but enough remained for a 
lasting picture when portrayed by a master hand. 

" I know," he wrote, " that the prisoners seemed all 
alike in feature, and that I could no more distinguish the 
one from the other than I could swear to a Chinaman or 
a two-toothed wether. I know that a general scowl of 
depression seemed to be in the fellows' faces, and that 
the noise of the irons made my unaccustomed ears tingle. 
I know that I thought to myself that I should go mad were 
I condemned to such a life ... I know that there seemed 
to me to hang over the whole place a sort of horrible 
gloom, as though the sunlight had been withdrawn from 
it. . . . How many sighs had gone up to heaven from 
among those trim trees, how many tears had moistened 
those neatly chiselled fiag-stones ! The scene upon 
which we gazed had been the loathed lifelong prospect 
of many a poor scoundrel who perhaps was not so much 
worse than I." • 

^ Gibb, p. 103. 

Martin Cash, Adventures, ed. by J. L. Burke, p. 57. Hobart 
Town, 1870. 

Clarke, Stories of Australia, p. 191. 

' Cash, p. 64. 

' Ibid. p. 61. 

• Gibb, p. 107. 

' Clarke, Stories of Australia, p. 194. 

' Ibid. p. 193. 



BANISHMENT 163 

And then he speaks of those who were, or had been, 
made mad. " The criminal lunatics were of but two 
descriptions ; ' they cowered and crawled like whipped 
foxhounds to the feet of their keepers, or they raged 
howling blasphemies and hideous imprecations upon 
their gaolers." The worst man whom the authorities 
claimed to have on their books was a certain Mooney — 
he had been transported about the age of thirteen for 
stealing a hare.' He had become, in time, a raging, 
desperate convict ; he had been flogged, he had been in 
a mutiny, he had been a bushranger, and a whole list 
of things. " And where is he now ? " the visitor asked. 
"Oh," said the genial official, with a calm self-satisfaction 
(so it seemed to the questioner) at the excellence of the 
system which he administered, " he's all right now ; 
we've got him alL right now. He's a lunatic in Port 
Arthur now." ' 

" I was eager," continues the writer, " to see my 
poacher of thirteen years. The warder drew aside a 
peep-hole in the barred door, and I saw a grizzled, gaunt, 
and half-naked old man coiled up in a corner. The 
peculiar wild-beast smell which belongs to some forms 
of furious madness exhaled from the cell. The gibbering 
animal within turned, and his malignant eyes met mine. 
' Take care,' said the gaoler ; ' he has a habit of sticking 
his finger through the peep-hole to try and poke someone's 
fcyes out.' I drew back, and a nail-bitten hairy finger 
like the toe of an ape was thrust with rapid and simian 
neatness through the aperture. ' This is how he amuses 
himself,' said the good warder, forcing-to the iron slot ; 
' he had best be dead, I'm thinking.' " • This was the last 
stage of a prison product seen in the recent and Christian 
year marked 1870. Less than a decade after Marcus 
Clarke's visit Port Arthur had happily ceased to be a 
penitentiary. 

Norfolk Island, 1788-1856 

Far away, about a thousand miles in the Pacific Ocean, 
stood Norfolk Island, E.N.E. of Sydney. It was first 

» Stories of Australia, p. i^S' * ^^^^- V- I94. 

J Ibid. * Ibid. p. 193. 



164 A HISTORY OF PENAL METHODS 

colonised as long ago as 1788,' when nine male and half 
a dozen female convicts were sent from the parent party 
newly come to Port Jackson. But those were the early 
days, when transportation meant mainly deportation 
and colonisation ; * about 1806 it ceased, for a time, to 
be a penal settlement. In 1826 the place was reoccupied 
with fifty convicts and a guard of as many soldiers,' and 
it was during the second quarter of that wicked nineteenth 
century * that it became the largest and the vilest of the 
ghastly penal settlements. 

Most of the convicts there were kept in fetters, of course, 
but these were often of the hea,viest kind : irons are 
mentioned as weighing 14, 36, even 47 lb. ^ — those on the 
mainland being usually from about 6 to 9. Martin Cash 
describes having been placed in chaiiis the basils of which 
were as thick as a man's. a,rm,' and the links of which 
appear to have been thicker ' than, the safety chains of 
a railway train. A spirit of wrath and insupportable 
oppression appeared to animate and possess the officials 
upon the island,' and several times the goaded and mad- 
dened convicts rose in short and sanguinary rebellion, 
only to be beaten back by bullets and bayonets and have 
their leaders ruthlessly hanged for them — which was 
perhaps the happiest termination that the malcontents 
could expect. In 1834, after one of these outbreaks, the 
condemned cells were visited by Dr. (afterwards Arch- 
bishop) Ullathorne. " And now," he writes,' " I have to 
record the most heart-breaking scene that I ever wit- 
nessed. The prison was in the form of a square, on one 
side of which stood a row of low cells covered with a roof 

1 Diet. Nat. Biography, art. " P. G. King." 

2 J. J. Spruson, Norfolk Island, p. 13. Sydney, 1885. 
2 Ihid. p. 13. 

* C. White, p. 276. 

' W. B. Ullathorne, Memoir of Bishop Willson, p. 55. London, 1887. 

West, Hist. Tas., p. 301. 

" Adventures, p. 134. 

' Captain Maconochie found 1,400 doubly ironed convicts when he 
arrived at the island, March 6, 1840. — Mary Carpenter, p. 97. 

' The convicts were dressed in brown and yellow clothing of frieze. 
Ullathorne, Autobiography, p. 92. They were required to cap each 
private soldier whom they naet, and even each empty sentry-box 
that they passed. They tore their food with their fingers and teeth, 
and drank for the most part out of water buckets. — Mary Carpenter, 
p. 97, and see also Meliora, vol. iv. p, 10. 

' Autobiography, p. 100. London, 1891. 



BANISHMENT 166 

of shingles. The turnkey unlocked the first door and 
said, 'Stand aside, sir.' Then came forth a yellow 
exhalation, the product of the bodies of the men confined 
therein. The exhalation cleared off, and I entered and 
found five men chained to a traversing bar. I spoke 
to them from my heart, and after preparing them and 
obtaining their names, I announced to them who were 
reprieved from death, and which of them were to die 
after five days had passed. I thus went from cell to 
cell until I had seen them all. It is a literal fact that 
each man who learned his reprieve wept bitterly, and 
that each man who heard of his condemnation to death 
went down on his knees with dry eyes and thanked 
God. Night had now fallen, and I proceeded to Govern- 
ment House, where I found a brilliant assembly, in strange 
contrast with the human miseries in which my soul had 
just been steeped." 

There certainly were brutal people upon the island, and 
some of the worst of them were not prisoners ! Now 
and then a voice of protest was raised, as in later times 
by the Rev. T. Rogers, and a coxswain, James Weir.' 
But the clergy were generally much more shocked at the 
sensuality of the convicts than by the hideous cruelties 
which were inflicted upon them,^ and their urgent protests 
On the former account ^ really intensified the degree of 
their sufferings, * by causing solitary cells and separation 
to be yet added to the sum of misery.^ 

1 Cash, Adventures, pp. 141, 142. West, Hist. Tas., p. 300. 

2 For some amazing details as to the prevalence of innate and sub- 
stitutional sexual inversion, disease, etc., etc., the reader can make 
reference to Com. of 1837, p. 6j. The ordinary punishment was 
50 or 100 lashes (p. 68). 

Select Com. on Trans. 1837-8, British Museum: Reports from 
Committees, xxii. (16) p. 42. 

Sir E. Eardley Wilmot to Lord Stanley, March 17, 1846. Accounts 
and Papers, vol. xlviii. p. 33, etc. 

^ Rev. T. B. Naylor to Lord Stanley, Accounts and Papers, vol. 
xlviii. (15) p. 67, 1847. 

* " I scarcely ever went into the Comptroller's room but the first 
thing he said to me before I came to the table was : 'Bishop, there are fifty 
cells for you, or twenty cells for you ; knowing that that would be 
the first thing I should mention and which would please me most to 
hear." — Bishop Willson. Vide W. B. Ullathome's Memoir, p. 49. 

' At one period there was severe separate imprisonment at Norfolk 
Island as a preliminary punishment. See Meliora, vol. iv. p. 7. 

There were thirty-three cells for solitary confinement at Norfolk.-— 
Stewart's Report, p. 83. 



166 A HISTORY OF PENAL METHODS 

We have seen what the island was under that barbar- 
ous martinet Major Anderson. In 1840 the reins were in 
the hands of an altogether different person, Alexander 
Maconochie, who was a Captain in the Royal Navy.' 
He was a man with many reasonable and enlightened 
views, but somewhat of a crank,' and a merciless moralist. 
However, in spite of his puritanism, his methods were 
considered by the authorities to be quite out of keeping 
with their views on punishment, and he was succeeded 
in 1844 by Major Joseph Childs. 

To this officer was assigned the task — apparently an 
uncongenial and unwelcome one to him — of revoking all 
Maconochie's concessions to prisoners, and making the 
prison to be a prison, in all the bad old nineteenth-century 
sense, again. A sad and difficult task it was sure to be, 
certain to arouse ill-feeling in all concerned, and bitter 
resentment on the side of the prisoners, who especially 
felt the loss of tobacco ' — in such a place no small item 
of consolation to them. The convicts became sulky and 
angry, and Major Childs, though a man who had led a 
forlorn hope in earlier life, * appears to have been somewhat 
tactless and vacillating in managing men, although the 
mere task of rebarbarising the settlement would almost 
certainly have led to catastrophe. 

Now the turbulent and threatening condition of the 
convicts at Norfolk Island had come to the ears of the 
authorities in Tasmania, and Mr. R. P. Stewart, a magis- 
trate, was sent out to investigate.* Amongst other things, 
he impressed upon Major Childs the need for greater 
severity on his part,* and a short time afterwards these 
orders bore fruit, and gaolers seized upon the prisoners' 
pots and pans, in which they were wont to do their own 
private cooking, thereby making many much-prized 

1 Spruson, p. 14. 

2 Gibb, p. 74. 

Capt. Maconochie to Mr. Hawes, M.P. — British Museum, Accounts 
and Papers, vol. xlviii. (15) pp. 104, 105. London, 1847. 

2 Stewart's Report, p. 84. Accounts and Papers, vol. xlviii. 

Ullathorne, Memoir of Bishop Willson, p. 60. 

* Cash, Adventures, p. 124. 

"■ Eardley Wilmot to W. E. Gladstone, September 3, 1846. 

» Yet he found twenty-one prisoners there awaiting trial who had 
been eleven months shut up in seven small cells wearing heavy irons. 
— Stewart's Report, p. 83. 



BANISHMENT 167 

additions to the hard, stinted and unhealthy fare officially 
given (out of scraps, fruits, vegetables, and in fact any 
odds and ends that came ready to hand upon the semi- 
tropical island), and doing small kindnesses to messmates 
and favourites.' 

They were taken away at night and put under lock 
and key, and when the convicts missed the things in the 
morning they broke out in another mutiny, in which 
some warders were killed and a number of mutineers were 
shot down by the military ; the leaders of the revolt 
being afterwards tried and executed. Major Childs was 
removed from his governorship by the Hobart authorities. 
They wanted a man who would stamp out rebelliousness, 
and they selected a well-known disciplinarian, Mr. John 
Price, who had been police magistrate.* In some respects 
he was a man of good parts : he had a light, easy way with 
him, and an eyeglass ; he was a man of courage and quick 
resolve ; but he was also one of those human tigers who, 
if they cannot obtain some uniform to cover their crimes, 
are apt to get hanged for them, or at any rate to come 
to a violent end — and Mr. Price was ultimately assassi- 
nated by some of his prisoners. But not on the island : 
he arrived there in 1846 armed with authority to execute 
vengeance ; he was to put the prisoners back into convict 
dress,' which, it would appear, they had laid aside ; he 
was to rule the place with a rod of iron, and quench the 
sparks of mutiny in blood. 

It would be hard to conceive a worse place than Port 
Macquarie, or a more dismal convict settlement than 
Port Arthur ; men dragged out their days in chains 
and gloom, and often died and were put away underground 
in fetters unfreed ; things can't be much worse than that. 
But Norfolk Island was the worst place of all in several 
ways. The sentences were generally longest ; a number 
were there for life* (especially in the latter days), and 
the ColoniaUy-convicted were frequently sent out to 
the settlements " for the remainder of their sentence " of 

1 C. White, p. 342. 

2 Wilmot to Gladstone, Accounts and Papers, xlviii. p. yj. 

3 Accounts and Papers, xlviii. p. 74. 
« Ibid. pp. 118, 119. 

C. White, p. 319. 
West, Hist. ii. p. 294. 



168 A HISTORY OF PENAL METHODS 

transportation,' which might easily involve them in a 
life doom (or sometimes for a comparatively short term, 
for much the same sort of crime) .^ The sentences, too, 
were often increased in the penal settlements at Norfolk 
Island; many of the prisoners never rettirned till the 
place broke up • (most of them were taken away in the 
year 1855), and one writer states that two-thirds of them 
perished there.* 

Moreover, at Norfolk Island especially, but not ex- 
clusively under Price,' they employed gags, bridles or 
head-stalls,' and a veritable engine of torture known as 
the Stretcher, which has been described as an iron frame 
some six feet by three, not unlike a bedstead, the sides 
being kept in position by round iron bars twelve inches 
apart.' Upon this frame the victim was fastened, the 
head extending over the edge and without support. One 
man is said to have been placed upon the instrument in 
a dark cell and left in this fashion for the space of twelve 
hours ; he was found to be dead when ultimately they 
came to him.' 

Another mediaeval method was to suspend chained 
prisoners by one hand;' and one of the most dreaded 
penalties sometimes resorted to, was to sentence a man 
to work — often with unhealed wounds from quite recent 
flogging — in the Cayenne pepper mill, the fine stinging 
dust from which was especially maddening." 

But the hellish conditions prevailing in all those inhuman 
prisons for colonial penal servitude can best be conceived 
from side-lights thrown upon them by the behaviour 
of the wretched prisoners, 

1 West, Hist., u. 181. 

* Cash, Adventures, p. 138. 

' T. B. Murray, Pitcairn, p. 277. London, 1885. 

* C. White, p. 328. 

' Stewart's Report, p. 83. Ullathorne, Memoir, p. 57. Gibb, 

PP- 31. 139. 

* Cash, p. 135. West, Hjsi. p. 301. 
' Cash, p. 141. Gibb, p. 69. 

" Cash, p. 141. 

» Gibb, pp. 65, 66. 

Hanging by the thumbs was a military punishment, and has been 
awarded on the other side of the Atlantic within the last twenty years 
or so (1912). 

"• Gibb, pp. 71, yy. 

Cash, p. 137. 

Compare also Falconbridge, Account of the Slave Trade, p. 41. 



BANISHMENT 169 

As we shall find them doing at English convict prisons 
many years afterwards, the prisoners would injure and 
mutUate themselves ^^ — as for instance by putting lime 
in their eyes—to get in the hospital. I will reproduce an 
official description of all they had upon Norfolk Island 
for the care of two thousand men. " The hospital," ' 
observes Mr. Stewart, " is a low building containing three 
wards, two of them accommodating five beds each, the 
other ten. The mode of ventilation is objectionable, as 
a thorough draught cannot be avoided ; the wards are 
exceedingly hot in summer and cold and damp in winter. 
They open upon a narrow verandah into an enclosed yard 
about 80 feet by 20 ; this is the only place in which the 
patients can take exercise. . . . The smell is always offensive 
in consequence of the want of a proper sewer, but during 
the hot season the stench is excessive.' Twenty beds, 
and a detached cold convalescent ward are the extent of 
hospital accommodation." 

Likewise, at each and all of the penal settlements, the 
prisoners committed desperate assaults, often upon each 
other by pre-arrangement,* " from absolute weariness of 
their lives," in order to get away from those dreadful 
places, if only as witnesses, or even as persons accused of 
murder.' At Macquarie Harbour, on one occasion, three 
prisoners tossed : one was to be slain, another was to 
strike the fatal blow, the third was to be the witness « of 
the planned deed ; so they would get a respite — a grim 
" holiday." At Port Arthur one man murdered his 
own particular friend and companion, that both might 
get free from it.' 

The same hideous tragedies took place also at Norfolk 
Island;' crimes were committed to obtain the joTirney 
to Sydney, even if it were to be upon a capital charge. 

1 C. White, p. 335. 

2 Accounts and Papers, xlviii. p. 83 (of vol. 179). 

2 Martin Cash, who had been a convict there, also alludes to the 
odour from the festering wounds of those who had been flogged at 
Norfolk Island. — Adventures, p. 141. 

* Sir George Arthur, Com. of 1837, P- 3io- 

5 Heport of 1838, p. XV. 
Braim, Hist. p. 286. 

" Marcus Clarke, Stories of Australia, p. 113. 
Vide also Charles White, pp. 353, 357. 363. 

' Com. of 1837, p. 310. 

' Report of 1837, p. 17. 



170 A HISTORY OF PENAL METHODS 

There too the " parts " to be taken were often decided by 
lot,' and they always tried to furnish the greatest possible 
number of witnesses. The appearance of these has been 
described by Sir Roger Therry, who at that time was 
Attorney-General. They had been two or three years 
upon Norfolk Island, and " Their sunken, glazed eyes, 
deadly pale faces, hollow fieshless cheeks, and once 
manly limbs shrivelled and withered up as if by premature 
old age, created a thrill of horror amongst the bystanders.' 
They were all under thirty-five years of age." The 
authorities met this terrible state of things in a manner 
typical of nineteenth-century Prison Boards. In 1834 ' 
the New South Wales Governor was empowered to con- 
vene a Criminal Court upon Norfolk Island, to be com- 
posed of a barrister and five officers. Henceforth these 
desired journeys to the trials at Sydney would be denied ; 
the abuses they let alone, and the outrages might con- 
tinue, but all was to be settled out at the prison ; and the 
gallows would swing men there. 

It is however necessary to bear in mind that all the 
horrors we have been reading of, the cruelties which can 
be better felt than adequately denounced in language, 
belong more to penal servitude than to transportation. 
These colonial prisons began thirty and forty years 
after the original convict settlers founded Sydney, and 
after the enlightened rule of Colonel Macquarie. They 
flourished in times when transportation had lost its first 
character, and had become more of a punishment ; when 
freemen, rather than convicts, were looked for as settlers, 
and when the Home Government wanted prisons rather 
than lands and colonies for its criminals. 

Thus we need not altogether blame transportation for 
the fell deeds which prison officials did far away from 
freedom. There was much that was good and healthy in 
transportation, but the guilt and stain round the rocks 
of those dreadful prisons will hang and linger in the 
memory of mankind till the ocean of time, which is 
vaster than the Pacific, engulfs them, and sweeps them, 
and us, away. 

• Therry, p. 19. 

* Thirty Years' Residence, p 21. 
3 4 and 5 W. IV. c. 65. 



CHAPTER V 

THE ORIGIN OF THE CELL PRISONS 

For it drives back my thoughts 

Upon their spring 

By a strange introversion, and perforce 

I now begin to feed upon myself 

Because I have nought else to feed upon. 

Dream of Gerontius. 

The end of the eighteenth century opened up an eventful 
period in the theory and practice of all prison manage- 
ment. John Howard (1726-90) had been exploring the 
gaols and lazarettos of England and Europe ; EHzabeth 
Fry (i 780-1 845) was visiting the women in Newgate ; and 
RomiUy {1757-1818) was striving to reduce the number of 
capital offences, of which, as we have seen, there were 
over two hundred. In fact, a little band of earnest men 
and women, zealous reformers, had at length compelled the 
ruling classes to look into the state of the prisons. What 
was revealed there, we already know. They found simply 
dustbins of demoralisation and pest-houses from which 
all kinds of evil sprang, and it was this well-intentioned, 
no doubt necessary, protest against the old order of 
things that set on foot a series of experiments on living 
animals — ^the prisoners — ^which, while they removed a 
good many of the then existing scandals and cruelties, 
yet inaugurated a machine for the infliction of suffering, 
compared with which the old barbarities were short and 
relatively merciful. 

The old prisons were crowded, squalid, germ-laden, and 
filthy ; the new were to be clean and sanitary. In the 
old buildings debauchery and open vice were coarse and 
rampant ; amidst the damp and miasmatic darkness 
would be heard the oaths and obscenities of the most 
abandoned of both sexes, along with the jingle of their 

171 



172 A HISTORY OF PENAL METHODS 

heavy fetters, which sound might be checked from time 
to time by the sharp slashing of the gaoler's whip. The 
new prisons were collected cells ; they were huge tiers of 
tombs, in each of which a solitary inmate lingered and 
often died. Deep silence reigned, but sometimes ghostly 
figures, ever-guarded, and wearing masks,' lest they should 
possibly recognise one another, were hurried through the 
cellar-hke passages, not daring to turn their heads to look 
around them, and scarcely to lift their eyes for a covert 
glance if another mask should shuffle swiftly by. As the 
more sanguinary and violent penalties began to shock 
the public conscience, imprisonment became the general 
punishment, and prisons passed from the detention-dens 
they had been into places actually for tormenting their 
inmates by a variety of ways and means concealed under 
the name of discipline. With primitive notions and little 
rmderstanding of the real, various, and complex nature of 
aU the many acts that are called criminal, the reformers 
classed all offences as being the outcome of mere " sinful- 
ness," and, as a corollary to this view, they diagnosed the 
broad and simple remedy for crime to be " repentance " 
artificially produced. 

Very much as the religious zealots of the dark ages 
strove to make heretics conform to their views by the 
infliction of torture, so these eighteenth- and nineteenth- 
century prison managers endeavoured to force the captives 
to reform by suffering. They attacked " Crime " as a 
concrete entity in the person of the offender, but left 
untouched those deeper and far-reaching causes from 
which it must inevitably have sprung. 

The penitentiary system is said to have been begun 
in Rome. "It is the fashion," " wrote Archbishop 
Ullathorne, " to ascribe the origin of the solitary and the 
silent system to the Americans, as having developed the 
experiment begun by Howard at Gloucester. But allow 
me to quote Monsignor Cerfbear, who was sent by the 
French Government to examine and report on the Italian 

* For numerous illustrations of prisoners wearing these see Mayhew 
and Binny, Criminal Prisons of London ; also J. Field, Prison Discipline, 
ii. pp. 99, 215, 239 (London, 1848). 

^ M. F. Glancey, Characteristics. From the writings of Archbishop 
Ullathorne, p. 218. London, 1889. 



THE ORIGIN OF CELL PRISONS 173 

prisons in 1839. ' I feel it to be a duty,' he says, ' to 
establish the truth. The correctional system is Christian, 
it is Catholic, it is no new system. It had its birth in the 
monasteries, and a Pope gave it its baptismal name when 
it came into the world.' " Pope Clement XL (1700- 
1721) as early as 1703 erected the prison of San Michele 
on cellular principles, causing the following inscription 
to be placed over its door : " Parum est coercere improbos 
poena, nisi probos ef&cias disciplina." * 

The idea was subsequently taken up in Milan, where a 
prison was buUt upon the San Michele model, and it 
has been claimed that the experiments which were tried 
in Belgium, at the Ghent Maison de Force, and spread 
thence over the United States, owed their initial in- 
spiration to the prison begun at Rome. But in all 
probability the then untried solitary system — a phase 
in the prison management in many parts of the world 
through the last century — was the natural reaction 
against the indiscriminate herding together which had 
lately been exposed. In England, Howard had a good 
deal to do with its introduction ; and apart from other 
evidence, this point is borne out by the following inscrip- 
tion, which was cut deep on the foundation stone of the 
New BaUy, Manchester, one of the many prisons which 
were the outcome of his revelations. " That there may 
remain to posterity," it ran, " a monument of the affection 
and gratitude of this country to that most excellent 
person, who hath so fully proved the wisdom and 
humanity of the separate and solitary confinement of 
offenders, this prison is inscribed with the name of ' John 
Howard.' " Under his advice and direction the Duke of 
Richmond built a "separate" gaol at Horsham, Sussex, 
in 1776. In 1778 an Act was passed (19 Geo. III. c. 74), 
for the erection of Penitentiary Houses ; and " solitary " 
prisons at Gloucester (1791), Glasgow, Southwell, and, in 
the course of time, at many other places, followed accord- 

The isolation movement was also active m America. 
The Quakers of Pennsylvania succeeded in abolishing 
capital punishment in 1786.^ At first they substituted 

» W. Tallack, Penological and Preventive Principles, p. 157. 
a Griffiths, Millbank, pp. 9 and 141. 



174 A HISTORY OF PENAL METHODS 

gang labour along the public ways ; ^ the convicts were 
chained by fetters and iron collars, they wore a distinctive 
dress and had their heads shaved — the latter being a 
common punishment in Siberia for attempted prison- 
breaking. Naturally this sort of pubUc employment was 
soon strongly objected to, and was given up largely 
through the exertions of the Society for alleviating the 
miseries of Public Prisons. But its efforts, as we have 
often seen, only set up evils far worse than were remedied ; 
about 1790 the famous Walnut Street Prison, which had 
been used for the captured British prisoners of war, was 
utilized for criminals. Here thirty sohtary cells were 
added, with the idea which was expressed in the Act, " that 
the addition of unremitted soUtude to laborious employ- 
ment as far as it can be effected will contribute as much 
to reform as to deter." Thus the new torture was begun ; 
but the " reformers " reached a deeper level of horror 
when in 1818 the legislatmre of Pennsylvania resolved to 
construct a penitentiary for enforcing soUtary confine- 
ment without even work ! At another prison a trial 
of sohtary confinement was made upon eighty convicts. 
In 1822 they were shut up for ten months each in a httle 
cell 7 feet long by ^i feet broad,' and were not allowed 
to leave it at any time or for any purpose. 

In various States these hideous experiments were 
carried out, with such variations as may from time to 
time have dawned upon the minds of the " philanthro- 
pists " in power. In Maine the prisoners were kept 
alone in underground cells,' which were veritable pits 
entered only by a ladder through a trap-door two feet 
square. These dungeons had a " Baronial castle " 
aspect, except that we read that besides the trap-door 
just alluded to " the only other orifice is one at the 
bottom, about an inch and a half in diameter, for the 
admission of warm air," which has a touch of dismal 
science and the nineteenth century. In Virginia the same 
sort of system had a trial,* and the cells were more 

'■ W. Crawford, Penitentiaries of the United Stales, p. 8. London, 

1834- 

» Ihid. p. 15. 

L. Gordon Rylands, Crime, Appendix 2. London, 1889. 

W L. Clay, The Prison Chaplain, ch. v. Cambridge, 1861. 

» W. Crawford. Report, p. 15. * Ihid. p. 16. 



THE ORIGIN OF CELL PRISONS 175 

"Baronial" still, for the walls would drip with water 
and they were quite unwarmed, so that one prisoner was 
found with his feet frozen. The cells were dark, and 
lamps had to be taken in when they were visited. But 
the new torture, soUtary confinement, was never meant 
to be applied that way, and never was by the skilled 
tormentors. In the experiments just glanced at, the 
zeal of the too ardent disciples of " discipline " defeated 
their object. Death and insanity were so wholesale and 
universal that no amount of figures and " philanthropy " 
could explain staring facts out of the way. We shall 
see how the new school erected their masterpiece later 
on, but meanwhile we may consider what had been 
doing in the Old Coimtry. 



CHAPTER VI 

PENITENTIARY EXPERIMENTS 

"As he went through Cold Bath Fields he saw 
A solitary cell, 
And the devil was pleased, for it gave him ii hint 
For improving his prisons in hell." 

The Devil's Walk. 

As we have said, one of the consequences of Howard's 
revelations had been the erection of quite a number of 
gaols on the cellular system in different parts of England. 
The reformation-by-solitude theory was then hailed on all 
sides as the Magna Charta of prison management. Once 
make prisoners think, and they will forthwith see the 
error of their ways. The broken-down, the cretinous, 
the neurotic, the unbalanced, once made to think, were 
somehow to solve all the terrific problems of disease and 
environment ; repent, and so save themselves. 

That the governing classes, the sound, the privileged and 
prosperous, should pause and reflect — that they should 
really consider the root-causes of crime, and seriously try 
and mean to make an end of them — was a remedy too 
revolutionary and uncomfortable to be even dreamed of 
throughout those selfish drunken decades of the nine- 
teenth century ! To. give effect to the new theories a 
vast and special Penitentiary was to be built, and Millbank 
was duly commenced about 1812. For ages there had 
lain a marshy flat along the river side, which had many a 
time been shot over for snipe, and may have been once 
a field for chase and falconry ; but upon which the toad- 
stools of the great city had begun to extend, in the shape 
of a pest-house and a bridewell. About 1821 there stood 
upon this spot on the Mill Bank a huge and gloomy 
many-towered prison, large enough to be clearly seen upon 
the Metropolitan maps in the form of a thick-spoked 

176 



PENITENTIARY EXPERIMENTS 177 

wheel, which fancy might have rendered into a human 
spider's web to catch unwary flies, which in truth it was. 
This black, forbidding-looking " reformation engine " 
is reckoned to have possessed three miles of corridors.' 
" Hidden amongst its hundreds of cells," * writes its 
learned historian, " its length of corridor and passage, 
beneath its acres of roof, are, without exaggeration, miles 
of lead piping . . . flagstones without end, shiploads of 
timber, millions of bricks." 

It had cost nearly half a million of money. 

We can make but a very brief survey of that long record 
of dreary cruelties and bungling experiments which for 
a good many years were carried out at MiUbank. 

At first it was very much a plaything for Society, and 
often visited from the outside ; the prisoners were well 
treated, though from the beginning the construction of 
the buildings aimed at solitude and separation, the full 
effects of which were to come out by-and-by. 

But the place lost its novelty, and soon lapsed into the 
hands of a regular committee and the salaried ofiicials, 
and thenceforward the System began to be worked out 
with the thoroughness which is usually exhibited to the 
fuU when one class inflicts what another class alone must 
feel! 

As we should now expect in a cell prison, we read of 
a great and increasing number of attempts at suicide. 

Again, as might be expected, these were nearly always 
classed by the official mind as being " feigned " when 
unsuccessful ; and generally as having been " accidental " 
whenever death ensued. At one period the dietary was 
suddenly lowered to some theoretical standard, no doubt 
fully approved of by the powers that were. But in this 
case it resulted in a serious epidemic (scurvy) of a some- 
what peculiar character,' and which proved so obstinate 
and deadly that the entire building had to be abandoned 
for a while, and all the prisoners removed elsewhere.* 

From the quality of the human material within the 
Penitentiary, and still more from the nature of the ex- 

1 W. Hepworth Dixon, The London Prisons, -g. 132. London, 1850. 

2 Grifi&ths, MiUbank, p. 37. 

' P. M. Latham, An Account of the Disease, London, 1825. 
.« Griffiths, MiUbank, chaps, iv. and v. 

12 



178 A HISTORY OF PENAL METHODS 

periments constantly practised upon them, especially in 
the direction of dark cells and separate confinement, it 
was only to be looked for, that much friction should follow, 
and barbarous repression come in consequence. 

The favourite mode of punishment was the dark cell, 
strangely enough, a terrible one for most natures. Of 
this we have the graphic account in Charles Reade's 
deathless tale,i which however relates to a period about 
a generation later on ; so tenaciously do prison horrors 
last, so hard are all secreted things to sweep away ! 

But the committee looked for further powers, and then 
obtained the right to inflict corporal punishment.' 

About this time the Governor was a Captain Chapman, 
of whom the able author of the Memorials of Millbank 
tells us a good deal. He is described as having been a 
man of courage and action, as no doubt he was. But 
it is really curious to notice that we find, over and over 
again, that his " goodnature " is insisted upon, and indeed 
almost alleged against him : he was, we read, " amiable 
to a fault, etc." 

But it is often a little difficult to fathom the official 
view of things, and after reading the above, the lay mind 
may begin to wonder at the continued consignment of 
prisoners to the dark cells, and still more to find this too 
merciful man superintending the infliction of a hundred 
lashes from the " cat." But the historian just quoted 
calls this " a highly necessary chastisement," and appears 
astonished that some feeling was aroused about it in the 
unofficial mind outside, especially as about 1830 " soldiers, 
for purely military offences, were flogged within an inch 
of their lives." • 

Some time later another prisoner was sentenced by a 
local magistrate to no less than three hundred lashes, of 
which one hundred were laid on in the presence of this 
soft-hearted governor and a crowd of the convicts. None 
of these spoke a word, though many were in tears. 

What this ghastly exhibition meant will be best realised 
to-day when we remember that the greatest number of 
lashes it is now legal and possible to inflict upon a prisoner 
is thirty-six ! ' 

^ It is Never too Late to Mend. ' 7 and 8 Geo. IV. * Millbank, p. 130, 
* Departmental Committee on Prisons, 1895. Appendix VI., p. 573. 



PENITENTIARY EXPERIMENTS 179 

In 1837 the Rev. Daniel Nihil was given the office of 
governor in addition to that which he already held of 
chaplain. That he was hard-working is undoubted, and 
that in his narrow wooden way he was sincere, is very 
possible, but, like most prison officials, he had become 
well hardened to the sight of suffering. One lad of only 
eighteen he got sentenced to three hundred lashes with 
the cat, seventy-five of which were laid on, the boy 
expiring some years afterwards, whilst still immured in 
the Penitentiary. 

The dreaded dark cells appear to have been in constant 
requisition, and it is sickening to trace the long-continued, 
cruel, useless struggle which was carried on with the 
tormented and the mad. In short, Mr. Nihil was what 
the great Charles Reade would have called common- 
place ; he was a man with no depth of understanding 
as to human needs, and a token of his character may be 
clearly made out from the fact that he opposed with all 
his might the subsequent appointment of a Roman 
Catholic chaplain who was to minister to prisoners be- 
longing to that faith. ^ 

In 1838 the Penitentiary ' was fiuriously attacked in 
the House of Lords on the ground that three little girls 
and two young men had been kept in cellular confinement 
for over a year and had completely broken down. 

But this apparently noble onslaught is described by 
Major Griffiths as a party move,' since " The attack made 
upon the Penitentiary was really directed against the 
Government," for Millbank was controlled, or should have 
been, by the Home Office. And there is reason to fear 
that this view is largely correct, for though we may make 
a little allowance for the common instincts of humanity 
which are possessed even by legislators, yet it was a 
brutal and callous age, in which prisoners, old or young, 
were of absolutely no account, and all the weak were kept 
within the waU. 

So that the statements on both sides must be looked 
upon with caution ; but the admitted facts are bad enough. 
After gaining information, Lord Melbourne (true to his 
creed of " Can't you let it alone ? " of course knowing 

1 Millbank, p. 172. ' Jbid. p. 225. 

* Ibid. p. 224. 



180 A HISTORY OF PENAL METHODS 

nothing of it personally), proceeded to defend the institu- 
tion. 

The little girls, he said, were all very profligate children, 
and their ages had been understated — they were each at 
least ten years old. These hardened sinners took exercise 
twice a day together, although in silence ; they went to 
school twice a week, to chapel on Sunday, and they were 
visited by Mrs. Fry and her associates. 

Of the young men, both had been left for death at 
the Old Bailey, but their sentences had been commuted 
to one year at Millbank. They would appear to have 
spent most of their lives in Marylebone workhouse, to 
which they were ultimately sent back, none the worse, 
so the investigators said. 

One was a lad of only seventeen, the other was of weak 
intellect ; but it was contended that he had always been so. 

Such are the admitted facts, and the breeze passed over, 
as it would not do to-day. It is quite clear that those 
little children, who tried to crumple up their sheets into 
the semblance of dolls, to mitigate their heavy loneliness, 
and whose only consolations were the reproving lectures of 
official visitors, were subjected to a much longer spell of 
separate cell confinement than is to-day awarded to the 
adult convict as a prelude to penal servitude. 

But the imprisonment of children has been by no means 
limited to Millbank, and it extended far beyond the 
" thirties." In his interesting work, published in 1850,' 
Mr. Hepworth Dixon cites some cases that had come under 
his personal notice, such as " a child of eleven then under- 
going his second sentence of six months' imprisonment," 
fourth time in gaol ; a boy aged fifteen " under sentence 
of transportation for seven years, this being his tenth time 
of recommitment." 

We shall have more than once to refer again to these 
sort of outrages upon the very young, and they form 
indeed one of the darkest stains upon our dreadful prison 
history.'' 

But public opinion seems to have been as apathetic as 
it was ignorant in those evil times, and not only was Mr. 
Chaplain-Governor Nihil allowed to continue his work, 

' The London Prisons, p. 21. 

3 Vide J. W. Horsley, Prisons and Prisoners, p. 126. Ix>ndon, 1898. 



PENITENTIARY EXPERIMENTS 181 

but even to push the system to far greater lengths than 
heretofore. 

We have seen that his main idea was to prevent com- 
munication between the sohtary prisoners; and they, 
alone in their cells, spent weary and unprofitable hours 
thinking out all conceivable and inconceivable ways of 
gaining the eye or ear of their companions in calamity. 

To find out what minds sharpened by solitude and 
hungry from mental starvation might have contrived, 
the Governor took counsel with one of the prisoners, for 
he easily found (as when have those in power not done ?) — 
some wretched creature ready to add betrayal to his 
other and lesser crimes.* 

By the help of this man's comprehensive suggestions 
the discipline was made more and more solitary, until the 
prisoners' minds began to break under the ordeal. No 
doubt certain natures had given way all along, but they 
had been too few to attract attention ; now the mental 
cases rapidly increased, until even the Committee inter- 
fered. With the crass ignorance and blundering barbarity 
well worthy of the scientific knowledge of that age, the 
offenders against morality were to be left in their living 
graves, their numbers being too few to bring discredit 
on the system with the public ; but for the rest of the 
prisoners, the " discipline " was to be somewhat easier, 
lest the whole place should grow tenanted with the insane. 

But the supposed panacea of solitude was stUl widely 
believed in at the time. A new and " model " prison was 
just being built : whether separation could be long con- 
tinued with sanity is, said the Committee, " a subject of 
much controversy, and can only be determined by actual 
experiment." 

And so more " philanthropists " of various grades and 
professions continued shutting people up, starving them 
in body, mind and soul, and then expecting reformation 
to arise out of the cell. And the world waited a generation 
or so with all the patience and the insight of a deluded 
fowl, that vainly warms and tries to hatch an artificial 
egg. 

1 Millbanh, p. 232. 



CHAPTER VII 

THE " MODEL " SYSTEM 



' Dark cells, dim lamp, 
A stone floor, one may 
Writhe on like a worm." 

Browning. 



In 1832 a Mr. William Crawford (1788-1847) * was sent 
over to examine and report upon the prisons of America ; 
for which he is said to have received £5,000.' This 
gentleman has earned for himself a brief notice by J . W. 
" from personal knowledge " in the Dictionary of National 
Biography, where he is described as a philanthropist. He 
had been secretary to the London Prison Discipline 
Society, and was afterwards, with Mr. Whitworth Russell, 
who had been chaplain at Millbank, appointed an in- 
spector of prisons by the Government. 

The two systems which divided the United States 
Penitentiaries between them at that time, were the 
Silent-Associated and the Separate, or solitary. 

When we read his description of them we appear to be 
confronted by that proverbial choice between the devil 
and the deep sea, or, as Robert IngersoU might have put 
it, between Pestilence and Famine. 

In the Association system the prisoners slept in single 
cells, but laboured together, no one however being allowed 
to speak or even to glance round. They were watched by 
visible and hidden warders, there were spy-holes in the 
very walls, and any breach of discipline was forthwith 
visited by a flogging from the warders, who were all 
armed with heavy cowhide cutting whips ; ' they could 

* Dixon, London Prisons, p. 146. 

' F. H. Wines, Punishment and Reformation, p. 154. 

• Crawford, Penitentiaries of the United States [1834], p. 17. 

182 



THE " MODEL" SYSTEM 188 

inflict what amount of stripes they chose, only making to 
the superintendent afterwards such a report as they saw 
fit themselves. 

In this way one woman was practically flogged to 
death, and prisoners were continually being taken to the 
hospital as the result of blows. The men sat together 
in the workshops, but by the savage rules all were com- 
pelled to work with ever downcast eyes, and " if a convict 
is caught looking off his work ... he is flogged by the 
overseer." ^ 

Such was the evU atmosphere of the place, but yet 
these sort of " workshops " are but too common in 
prisons — indeed they are often held up as examples of 
what such places ought to be. Speaking of Preston a 
good many years back, the late Rev. John Clay took 
pride in the belief that no prisoner there would look up 
even if visitors and ladies came into the room.' 

Referring to certain prisons in the Old Country, Mr. 
Crawford observes : " When labour is imposed, its cor- 
rective influence is lost from the absence of constant 
inspection and means of restraint. Silence, although 
nominally enjoined, is not scrupulously maintained, and 
prisoners are not, as they ought invariably to be, pro- 
hibited from looking off their work and gazing at various 
objects in the wards and yards." ' 

This sort of " discipline " has found much favoiir up 
to Very recent times, and I recollect an eminent divine 
relating with some surprise, that once at Dartmoor, when 
a prisoner had a fit diuing chapel, not a convict moved 
or dared even look round to see what was the matter. 
We may suppose and hope, for the sake of his soul, that 
Mr. Crawford, of the Prison Discipline Society, was a 
commonplace man with little imagination. No punish- 
ment appears to have come home to him, and then but 
feebly, that was not physical, acute, and obvious. 

Yet the most fearful of all punishments— solitary con- 
finement—is one that leaves no trace and makes no sound. 

In order to inflict this penalty, it must be said, at that 
time, little understood, a new and very special prison had 

1 Crawford, Penitentiaries of the United States [1834], p. I7. 
' Dixon, London Prisons, p. 338. 
' Crawford, Report, p. 30, 



184 A HISTORY OF PENAL METHODS 

been erected about four years before, and Mr. Crawford 
hailed it as the promised— gaol. This was the Eastern 
Penitentiary. The story of this dreadful place reads like 
a chapter from the Spanish Inquisition. A prisoner on 
being received passed through three rooms. In the first 
he was imdressed ; in the second he was cleaned by a 
warm bath ; in the third he was attired in the prison garb 
and his face was covered by a hood. 

Thus blindfolded, he was led into the presence of the 
warden,^ who gave him a talking to ; he was then taken 
to his cell, and left there. For the first few days he had 
neither books nor occupation of any kind, till he was 
thoroughly crushed and humbled by the awful solitude. 
The cells were ii ft. 9 in. by 7 ft. 6 in. ; and 16 ft. high 
to the top of the vaulted ceiling aloft, lest he should 
look out on earth or into the infinite space of heaven, was 
the window. Means of sanitation were provided in each 
cell, and there were the usual ventilators and hot-air 
pipes, for it was to be quite a modern place of torment. 
A small aperture, closed by an iron door, allowed the 
daily food to be passed in, without a human being to be 
seen or heard ; he had no (private) visitors or letters, his 
isolation was complete, and he was buried in a veritable 
tomb. 

From the ground-floor cells, thick double doors led 
out into a sort of stone tank which was called a yard, 
but which was only 18 ft. by 8, and surrounded by walls 
II ft. high ; even then, prisoners might not exercise 
in adjoining yards at the same time. The victims in 
the cells of the upper stories never went out at all. It 
has been estimated from returns that out of every 1,000 
prisoners who passed the gate from 90 to 100 did not 
live to finish their sentence or feel the open air again.* 

Such was the inferno which had been created under 
the craze about " contamination " and the mockery of 
reformation. Indeed it was a grisly pretension in this 
case, for in this precious penitentiary, with all its utter 
empty loneliness, there was at that time no regular 
religious service, and there was no chaplain there ! ' 

1 Crawford, Report. Appendix I. 

s Sir J. Jebb, Purveyor-General of Prisons, Report of 1847, p. 59. 

3 Crawford, Report. Appendix. 



THE "MODEL" SYSTEM 185 

If anjrthing yet were wanting to fill up this measure of 
cruelty, it would be the fact that, there being then no 
State lunatic asylum in Pennsylvania, admitted lunatics 
were not infrequently consigned to the mercies of the 
Penitentiary.' 

Yet this was the institution which impressed the older 
school of " philanthropists," and of which Mr. Crawford 
wrote saying that, " with the addition of moral and 
religious instruction, in which this prison is eminently 
deficient, solitary imprisonment, thus enforced, might be 
made permanently efficient- not only in deterring but in 
reforming the offenders." ' 

It may be argued in his defence that the penitentiary 
had then only been about four years in partial operation 
(in prisons Time seems almost shut in too ; but glacier- 
like it does move and take the stones and buildings on 
with it), and that his " ideal " system which might lead 
to good results was somewhat different from the one he 
actually found in action. 

But Mr. Crawford had shown himself to have been a 
man without imagination, and, perhaps consequently, 
without heart. 

Even John Howard, to whom many cruelties as well as 
reforms were undoubtedly due, possessed all the hardness 
as well as the strength of the Puritan character, and an 
admiring biographer is still constrained to say of him that 
" No man ever lived who was less a creature of impulse. 
He had no sentiment, scarcely any ideality — he was 
simple and grand like an iron column in a rock of granite, ' ' ' 
and from our present knowledge of his domestic life and 
of his religious views, I can well believe that he was more 
shocked at the flagrant irregularities which he discovered 
behind prison walls, than at the actual human misery 
which they entaUed. 

But few indeed can picture what they have not seen, 
or suffer what they have not felt. So Mr. Crawford 
returned to London full of admiration for the new system 
in its extreme form, which was to be productive of reforma- 
tion if moral and religious instruction were only added. 

» Crawford, Report. Appendix. 

'^ Report, p. 14. 

3 W. Hepworth Dixon, Life of Howard, p. 30. 



186 A HISTORY OF PENAL METHODS 

This was, as Mr. Hepworth Dixon has keenly pointed out,' 
simply a theory of what he thought would or should 
happen, under future conditions. Many State cruelties 
have been set on foot in the same manner, and the idea 
had great influence with the Home Secretary of that day, 
who introduced a Bill in 1839, advancing separate 
confinement. The next step was to erect a "model" 
prison — at Pentonville — which was finished in 1842.' So 
convinced were people of that period that they were 
definitely on the right road, that within the next six years 
fifty-four new prisons were built in England after this 
precious " model," ' and the new doctrines spread far 
and wide. 

At Pentonville the isolation theory was carried out with 
all the ardour of a new religion under the personal watch- 
fulness of Mr. Crawford, who had become an inspector of 
prisons, and who died suddenly within the prison he was 
regulating, in 1847. 

The ruling notion of this school has always been that 
prisoners meeting, under any circumstances, was about as 
much to be avoided as a confluence of the small-pox 
spots ; so for long periods, for two years at the beginning,* 
and later for eighteen months, every man was kept in 
isolation. 

Up to 1853 the prisoners wore masks along the passages,* 
they sat in separated pigeon-holes in chapel,' even on the 
treadwheel they were partitioned off, and the newly- 
invented crank was ground in solitary weariness within 
the cell ; where each took an hour's exercise a day, in 
what has been called a " triangular den," surrounded by 
high gloomy walls.' 

The convicts to be subjected to the " model " disci- 
pline were specially selected as being likely and promising 
subjects to endure it." The sickly and those supposed 

' The London Prisons, ch. vi. [1850]. 

s Ibid., p. 151. 

2 Grifi&ths, Secrets of the Prison-House. 

• Tallack, p. 139. 
Griffiths, Millbank, p. 146. 

^ Clay, p. 193. 

• Dixon, p. 175. 
^ Clay, p. 192. 

• Griffiths, Millbank. p. 338, 



THE "MODEL" SYSTEM 187 

to have a tendency towards insanity ' were carefully 
weeded out ; for a sound mind — so far as was compatible 
with criminality — in a sound body,' was natiirally 
regarded as the very best material » on which to make 
experiments. 

But in defiance of " model " theories it became manifest, 
as time went on, that the prisoners were giving way under 
the stress of solitude. For a long while the officials would 
not hear of it, and accounted for morbid symptoms in all 
sorts of ingenious ways. A story is related that, at one 
period, they even attributed them to the somewhat 
sulphurous earnestness of a too- vehement chaplain : 
discourses that could be calmly borne in the prospective 
smell of roast mutton and onion sauce, were brain-shaking 
upon solitude and skilly. A milder man is said to have 
been procured, but the mental wreckage still continued ; 
it was the experience of MUlbank all over again. 

The first batches of convicts on their way from Penton- 
ville to the antipodes,* were discovered to be quite unable 
to take care of themselves. The sudden inrush of the 
outer world was too great a shock for the enfeebled, 
crushed-out creatures they had become. Some had con- 
vulsions, others fainting-fits, yet more were idiotic, and 
nearly all were described as thoughtful, subdued and 
languid in their ways. Clearly some subtle mischief had 
been working upon them. In the decade from '42 to '52 
the discipline had to be continually modified ; in the end, 
the " solitary " was brought down to nine months, that 
being, it was then considered, the most that could be 
safely borne ; • yet when ordinary instead of selected 
prisoners began to be received at Pentonville ' the rate 
of insanity flew up fivefold and some even say eightfold, 
under the " discipline " in its modified form.' 

' London Prisons, p. 156. 

2 Jebb, Report, 1847, p. 20. 

3 W. L. Clay, The Prison Chaplain, 190 and 246. 

* Dixon, p. 163. 

• Clay, p. 225. 
° Ibid. p. 246. 

'' Tallack, p. 139. 



CHAPTER VIII 

"model" labour 

The influence of the " shallow dreamers " who had 
evolved the cell system, and had mapped out human 
nature straight from their dull imaginings, was yet by 
no means spent. And as certain eruptions attack the 
limbs and extremities after they have left the centre of 
the body, so the new " discipline " spread into the country, 
and even, in some degree, to distant lands and far-off 
colonies, long after it had been modified and altered at 
its prime centre of invasion. 

Nay more : as time went on, the cell began to relinquish 
even its original pretensions towards effecting reformation, 
and to be chiefly relied upon as a sure if subtle means 
of systematic torment ; which has always been termed 
" discipline " in modern parlance ; just as little wars, 
where the loss is all on one side and the loot on the other, 
are often called in Europe, " military operations." 

Now in the old days men, women and children were 
" pitchforked " into prison all together. Nobody thought 
about them or their needs ; nobody wanted to reform 
them ; and no brood of " philanthropists " had yet begun 
to worry and increase their sufferings. 

But the prisoners idled about without work, order, or 
classification : to employ people well and wisely within 
harrow walls would have required far more effort and 
intelligence than is generally directed upon criminals. 
One day it happened that Sir William Cubitt (1785-1861), 
the eminent engineer, was appealed to ; and, in an evil 
hour, though very likely with the best intentions — for 
it is said that he did not at first contemplate the machine ' 
being used as a means of punishment — he devised the 
Treadwheel.' This was in 1818. 

' Cubitt, Dictionary of National Biography. 

2 See third and fourth Reports, Society for the Improvement of 
Prison Discipline (1821, 1822). 

188 



"MODEL" LABOUR 189 

Its ordinary form ' was something like that of a very 
wide mill-wheel such as is turned by water power, con- 
taining twenty-four steps." Each prisoner held on to a 
wooden bar or ladder-rung, above his head, and kept on 
treading as the steps went round. The body, or barrel, 
of the wheel, was mostly about 5 ft. in diameter, but in 
early days there appear to have existed several varieties ; 
as for instance at Leicester, where it was 20 feet across, 
and the prisoners worked from the inside ; but after 
having had two fatal accidents — of coxurse, according to 
the official report, " from the perverseness and wilful 
misconduct of the men " — this inside-scramble style was 
given up.' 

But the ordinary wheel was not, it would seem, without 
its dangers : in the official correspondence just quoted we 
are told that a man was killed upon the mill in Suffolk, * 
while from Northallerton came an account of a prisoner 
having his arm torn off by the machine, in each case from 
that most deadly of all offences against the " model " 
system — attempting to speak to an adjacent fellow-toiler 
who was a human being and not an official. Usually 
little stalls were buUt upon the wheel, so each man had, 
as it were, a little box all to himself. Hard and brutalising 
as of course this kind of " labour " always was, women 
were set to do it. In a letter written by the Clerk to the 
Justices of Middlesex ' to the Secretary of State in 1824 
mention is made of a woman who was with child, having 
recently been set to work upon the wheel, which was 
followed by the medical results that might have been 
expected, the next day ; but it was pleaded that her 
condition was not known at the time. From the same 
correspondence we learn that at Guildford a woman was 
sentenced to three months' hard labour and the treadmill 
for the curious offence of being delivered of an illegitimate 
child — her third — which became chargeable to the parish 
of Godalming.' This too was made the task of un- 

1 Some views of the wheels and of that still more ghastly instrument 
the crank are given in Reports from Committees, British Museum, vol. xu. 
1835, also Mayhew & Binny, Criminal Prisons of London. 

2 Accounts and Papers, 1824, vol. xix. 

3 Letter from Leicester officials to Home Secretary in above. 
« Accounts and Papers, 1824 (British Museum). 

• Ibid. p. 153. ■ IM- V- i^i. 



190 A HISTORY OF PENAL METHODS 

convicted prisoners in those days, and so wearying is the 
monotony of prison life that they are said sometimes to 
have desired even such employment. ' 

The tasks set for the treadmill varied very much: at 
first prisoners had to ascend a number of steps, ranging 
from 5,000 to 14,000 feet ; * in later times the regulation 
task was 8,640 feet for the day's work.' Sometimes the 
wheel was employed in pumping or grinding, sometimes 
it was achieving nothing, but going round like a " damna- 
tion miU." 

The Crank, a still more " model " instrument for the 
cell-theorist, dates from a later period, having been first 
invented by one Gibbs at Pentonville, probably about 
1846.* Sir J. Jebb, writing in 1847, says that "it was 
brought forward in consequence of certain objections 
having been urged against the treadwheel," and speaks 
of it as a new thing. Like so many nineteenth-century 
prison " improvements," the crank was far worse than 
anything of the kind yet invented, and, next to the cell 
itself, it soon became the chief " reforming engine " of 
the " model " system. 

The newest monster might be compared to a churn in 
appearance, or to a chaff-cutter, or twenty other things, 
made up of a case and a handle ; it was just a metal box 
raised to a convenient height by a support. It had a 
handle to be turned and a little clock-like face upon one 
side to count the revolutions made. The requisite amount 
of resistance was secured by a metal band, which could 
be tightened with varying force pressing inside, upon the 
axle ; it might perhaps be compared to the band-brake 
sometimes seen upon the back wheel of a bicycle. The 
ordinary resistance was nominally from 4 to 11 lb." 

The usual number of revolutions " required was 14,400 
a day, being at the rate of 1,800 an hour.' Soon other 
prisons which had sprung into existence out of the parent 
penitentiary at Pentonville adopted the crank and drove 

I Letter from Norfolk Prison in above. 
' Crawford, Report, p. 33. 

E. F. DuCane, Punishment and Prevention of Crime, p. 97. 

Report of the Surveyor-General of Prisons, 1847, p. 17. 

Ibid. Appendix K. 

Royal Commission of 1863, p. 415. 



3 



• 



' Jebb, Report 1847, Appendix K. 



"MODEL" LABOUR 191 

it for all it was worth ; more correct would it be to say, 
that they made the prisoners do the working while the 
officials moralised — ^which was much pleasanter. At 
first it had been intended only for vagrants and short- 
sentence men, but after 1848 it tended more and more 
to oust other labour altogether : a noble model for the 
admiration of God and the imitation of men. 

The instriraient was improved upon in various ways, 
and a sort of exhibition of Cranks was held at which the 
various devices were examined — amongst them one 
machine which was a kind of sand-churn ; but theAfpold 
crank ^ appears to have been the one that met with the 
official sanction.' 

It was in 1851 that the mmrderous tyrant who has been 
lifted into the lasting piUory of shame in Charles Reade's 
story,' was made Governor of the gaol at Birmingham. 
In this modern hell upon earth the cell was the reforming 
force, the crank its worthy minister ; and a merciless 
martinet was urged to carry out the model system to the 
very utmost ; and he did. One is naturally apt to fancy 
that the great novelist over-coloured his tale ; but the 
whole terrible story is preserved in an official record, 
and stands a lasting stain upon our comfortable self- 
complacency.* 

Ten thousand revolutions a day of the crank were then 
required, at a nominal resistance of 5 lb. for boys and 
10 lb. for grown men. If the work was not done, even 
the scanty prison food would be withheld, and the 
prisoners were crushed and squeezed and strapped into 
that modern variety of the " Scavenger's daughter " of 
the Tower — the punishment jacket. 

The cranks were in cells round a yard, and the victims 
who had not completed their task were often left there, 
turning the machine desperately for their very lives- 
turning and turning after darkness had set in, when the 
dial of the indicator could no longer be read ', so that 
sometimes, even after the heavy official task was really 

1 Royal Commission on Birmingham Prison, 1854. 

Accdunts and Papers, vol. xxxvii. . . 

» See also fifteenth Report of the Inspector of Prisons, Home Dtstnct. 
' It is Never Too Late to Mend. . 
* Report of the Royal Commission on Birmingham Prison, 1854. 

Accounts and Papers, vol. xxxvii. 



192 A HISTORY OF PENAL METHODS 

done, they would work on and on, as never slaves worked 
at the Pyramids of Egypt, making many more revolu-: 
tions even than they had to do ; yet next day these were 
not counted to them, but all the long ten thousand 
had to be done anew. 

Even this was not all, for it was found that these 
cranks, which were of an old pattern, were faulty in con- 
struction and false in registration, for whenever they grew 
heated from the friction of the working, it was estimated 
that the resistance would increase threefold ; and it was 
found that half-starved lads were set to go through tasks 
requiring one-quarter of the power of a dray horse to 
accomplish, which of course could not be done ; and 
then the victim was pronounced refractory ! * Thus 
" Josephs" (really, Edward Andrews), a fifteen-year-old 
boy — a quiet, neglected, inoffensive creature, who had 
stolen a piece of meat and was in for three months — was 
pht on a " 5-lb. crank," which is said to have been equal 
in resistance to one of 20 Ib.^ And because he could never 
do the impossible task he was starved and jacketed,* and 
put in the black cell and punished, till the miserable boy 
broke down and hanged himself in his lonely cell and 
was found dead. 

Then at last some tardy retribution came ; there are 
times when the silence of the wall is broken down, and 
when the people gain a passing glimpse of what tor- 
mentors do. 

The city was moved to anger : the governor, the prison 
surgeon (a jackal-minded scoundrel, who had abetted 
everything), and the visiting justices who had morally 
become accessories to wilful murder, were shown up to 
general hatred and loathing, and a special Government 
Commission sat upon the gaol. 

The arch-devil is said to have been condemned to 
prison for three months,* which seems almost too good 
to be true, for there have been many people very like 

^ Report, p. vii. 

2 Minutes of Evidence, p. 275. 

2 A somewhat similar punishment jacket, contracting the members 
and organs with extreme suffering, was in use in Italy, I understand, 
until the present reign. 

* M. D. Hill, Repression of Crime-, p. 232. London, 1857. 

Daily Express, Sept. 15, 1900. ^ 



"MODEL" LABOUR 193 

him in the prison sarvice who have never had even that ; 
nor any foretaste of their just reward, within the little 
mist-bounded span of life the eyes of men have been 
allowed to see. 

The same Royal Commission then went on to Leicester 
prison. Things there they fomid nearly as bad, though 
the cruelty was more of the ordinary systematic kind, 
which is much harder to bring personally home. The 
solitary cells had been added in 1846, and there was no 
infirmary, for, says the official report, ^ " At that period 
the opinion seems to have been entertained by many 
of the early founders of the system, that prisoners when 
sick could be treated without any disadvantage in their 
separate cells, and that the integrity of the system need 
not be infringed even in cases of serious disease." ^ 

The crank, of course, was going strong, the maximum 
task being 14,400 turns for an adult and 12,000 for 
juveniles. DaUy food had to be turned for ; thus 1,800 
revolutions were necessary to gain breakfast — such as it 
was; dinner took 4,500 more; supper another 5,400, 
leaving 2,700 turns to be done afterwards if not completed 
earlier. The effect of this sort of thing was that many 
of the prisoners were nearly starved to death, and of 
course the continued loss of food rendered them less and 
less able to do the heavy tasks before them. One man 
is confidently believed by the Commission to have had 
only nine meals in three weeks of working days ; on the 
Sundays they were all fed. The tasks were performed, 
or attempted, in the cells, which were stuffy and ill 
ventilated for this violent kind of labour where men were 
bathed in perspiration. Besides semi-starvation the 
prisoners might be flogged with the light cat up to three 
dozen lashes ; but the punishments just alluded to were 
probably worse than this, as we shall subsequently find. 

Within these kind of prisons were to be found two or 
three children aged nine,' and a good many of eleven, 
twelve, and thirteen ; all carefully isolated and all utterly 
desolate. 

1 Report of Royal Commission on Leicester Prison, 1854, p. x. 
Accounts and Papers, vol. xxxiv., British Museum. 
=> " The Infirmary was a spot on the sun," — Charles Reade 
' Birmingham Pris. Comm. Min. of Ev., p. 260. 

13 



194 A HISTORY OF PENAL METHODS 

Then prisoners might be ill in their cells, and even 
die — three had so died at Birmingham — with no one near 
for any sort of help or human consolation. And in the 
morning, at the regulation hour, the turnkey came, as 
to the dead child " Josephs," to find that while the Home 
Ofi&ce had procrastinated, while the patrols went round 
and all the heavy gates and doors were locked and barred, 
a Messenger had come through the caverned silence, 
taking the trial to the King of kings. 



CHAPTER IX 

THE BREAK-UP OF THE MODEL 

The separate system, that disastrous fad which wrecked 
so many lives and long created untold misery, can claim 
but few adherents now. 

But once this cell-salvation was a veritable creed ; ' 
many a savage crimson-stained idolatry has done less 
harm, and not been more inhuman and grotesque. 

But all beliefs die hard, and none the less so when they 
are most monstrous ; the cell was once the very emblem 
of prison progress. ' ' The officials like it, ' ' wrote Mr. Hep- 
worth Dixon in the middle of last century ; " it gives them 
very little trouble, so, without pretending to understand 
its complicated effects, moral or mental, they almost all 
swear by it."' It was looked up to as a counsel of per- 
fection ! Even now there still remain some pious but 
duU-minded " philanthropists," who keep on muttering 
the shallow shibboleths of empirical penology, but they 
have grown rather numb and impotent in these latter 
days, like blood-sucking mosquitos left out in the cold. 

But there are backward countries more important 
than retarded individuals ; there are distinct stages of 
prison management, just as there appear to be in the 
progress of civilisation. Thus Morocco may be said to be 
(remember for good as well as for evil !) in the middle-ages 
of prison development. Italian penal servitude is prob- 
ably much worse, and more resembling that of the earlier 
nineteenth century. For prisons have always been the 
stagnant backwaters of life, but little corresponding 
to the gejriT^^Ta nation. 

* Ferri has called it one of the " greatest aberrations of the nineteenth 
century." — VideCB. de Quiros, Modern Theories of Criminality, -p. i8i. 
London, 1911. 

' London Prisons, p. 154. 



196 A HISTORY OF PENAL METHODS 

We must do our best, and earnestly hope and strive 
that those other lands may not also have to pass through 
that dreary, desolate period of the cell-sepulchre system, 
which crept in on us under the guise of progress. 

We have ourselves been great transgressors in the past, 
but it is something to know that we have ultimately shaken 
off this snare, and that the " model " discipline has dis- 
appeared for ever. 

We have seen that Archbishop UUathorne claimed that 
the cell system was first brought into use by the Catholic 
Church. But the penitentiary begun by Pope Clement 
seems to have differed widely from those afterwards tried 
in England and America. 

It would appear that what the Pope had in his mind 
was to employ the monastic discipline of meditation as 
a potent moral agent ; the prisoners were employed 
in work, and were assembled together for instruction. 
What he purposed that the penitentiary should be, is 
pretty well explained in the Latin inscription which 
Howard translated " For the Correction and Instruction 
of profligate Youth : That they who when idle were 
injurious ; when instructed, might be useful to, the State. 
1704." '■ We are told that " The silence was not enforced 
so unmercifully but that the prisoners could talk quietly 
together in recreation for half an hour on Sundays and 
holidays." ' 

No doubt there were yet many dangers inherent to the 
system, but the effects of solitude were not appreciated 
then ; there is also evidence that the Papal plans were 
afterwards allowed to fall into neglect, as has mostly 
been the case with prison matters everywhere.' 

But while claiming the " correctional " system for his 
Chiurch, the Catholic prelate denounced the mere empty 
barren solitude of the later penitentiaries in most un- 
sparing terms. 

" The Solitaries of the East," he wrote, " were usually 
trained in monasteries or under recluses ; and when they 
petitioned to go and converse with God alone in the silent 
desert, they carried this admonition with them, that a 

1 Howard, State of the Prisons, 1780. 

2 Glancey, Characteristics , p. 219. 

' Howard, Account of the Foreign Prisons, etc., 1789. 



THE BREAK-UP OF THE MODEL 197 

solitary man is either an angel or a devil. Still they had 
occasional visitsfrom the brethren andfrom other solitaries 
and from pious or afflicted persons who sought counsel 
or comfort from them. To quote but one experienced 
authority, St. John Climacus says, ' Few are the persons 
who lead the eremitical life led by the light and wisdom 
of the Holy Ghost.' What then must it be to shut up 
one of our godless and reckless criminals, strong in animal 
instincts and void of spiritual or mental resources, within 
the four white walls of a contracted cell, without even a 
window low enough for him to look through ? It is like 
shutting up a living body within a dead one. It is the 
Carthusian's life without his grace, without his vocation, 
without his contempt of the world, without his soul open 
to heaven, and, not to forget the material part, without his 
rooms and little garden, and without the long chanting of 
his brethren in the choir." ^ 

" Even the anchoret," the Archbishop continues, " had 
the open desert and his work for the poor of the cities. 
But the criminal is thrown upon his own denuded and 
sterile natiure, such as vice and profligacy have left him ; 
and the question that remains is, how long will he go 
without breaking down or sinking into imbecility ? " ' 

Perhaps the chief reason why the punishment of solitude 
received so much support and endured so persistently, is 
that its effects require some experience to perceive and 
the gift of imagination to estimate. In this respect the 
cell resembles some of the worst tortures of the middle 
ages. One of these is said to have consisted in letting 
water fall drip by drip upon the victim's head — a process 
that looks as innocent as a morning bath, but which, we 
are told — for torture was a fine art then— resulted in con- 
vulsions, madness, and death in horrible anguish. Another 
torture very commonly employed consisted simply in 
poiu-ing a large quantity of fluid down the prisoner's throat, 
which soon set up acute compression of the tightly-packed 
internal organs, cramps, spasms, and great suffering; 
this was the torture to which, in the ordinary course of 
business, the beautiful but infamous Marquise de Brin- 
villiers was subjected just before her execution in 1676.* 

1 Glancey, p. 284. ^ Management of Criminals, p. 25. 

2 F. Funck-Brentano, Princes and Poisoners. 



198 A HISTORY OF PENAL METHODS 

" What the eye sees not the heart feels not," runs the 
proverb ; but the converse is also true, that what the 
heart does not appreciate the eye does not really convey : 
it is the soul that sees.' 

Who shall ever say how much the heavenly gift of 
sympathy depends upon the possession of imagination ? 
An official faddist like Mr. Crawford, when he looked upon 
the dumb, dreary, unbroken, hopeless misery of the Eastern 
penitentiary, is quite pleased and content at " the mild 
and subdued spirit which seemed to pervade the temper 
of the convicts, and which is essentially promoted by re- 
flection and solitude and the absence of corporal punish- 
ment. The only offences in the Eastern penitentiary 
which a man can commit are idleness and wUful damage 
to the materials on which he is at work."^ No corporal 
punishment indeed ! but minds were tortured there ; 
the prisoners " universally concurred in the conviction 
that solitude was of all punishments the most fearful," 
yet nothing less than the puffed and purple furrows of 
the lash came home to the official mind, or troubled it 
much then. 

Speaking of the prisoners whom he had visited, Mr. 
Crawford wrote : "Although generally serious, they were 
not depressed, and several talked with a cheerfulness 
which I did not expect to find in men thus situated."* 
Again this shallow-minded person mistook the signs he 
saw. Looking over an old report by Sir J . J ebb, Surveyor- 
General of Prisons, I came upon the following explanatory 
passage: "The appearance of cheerfulness is more 
probably due to the excitement of their solitude being 
broken in upon than to any abiding feeling of the kind 
when alone." * Mr. Crawford could not understand, but 
happily Dickens could. A great man does sometimes 
pass through the gates of woe — not always as a free and 
honoured guest, I hold. It is a relief to turn from that 
official husk of humanity to read the burning words of 
one whose body lies with the old Abbey's dead. Of that 
same place, the Eastern Penitentiary, a few years later, 

* I believe it was William Blake who said that men see through, 
rather than with, their eyes. 

" Report, 12. 

• Crawford, Report, p. lo. 
« Jebb, Report for 1847. 



THE BREAK-UP OF THE MODEL 199 

he wrote in ever memorable words : " In its intention I am 
well convinced that it is kind, humane, and meant for 
reformation ; but I am persuaded that those who devised 
this system of prison discipline and those benevolent 
gentlemen who carry it into execution do not know what 
they are doing. 

" I believe very few men are capable of estimating the 
immense amount of torture and agony which this dread- 
ful pvmishment, prolonged for years, inflicts upon the 
sufferers. I hesitated once, debating with myself whether 
if I had the power of saying yes or no, I would allow it 
to be tried in certain cases where the terms of imprison- 
ment were short ; but now I solemnly declare, that with 
no rewards or honours could I walk a happy man beneath 
the open sky or lie me down upon my bed at night with 
the consciousness that one human creature lay suffering 
this unknown punishment in his lonely cell, and I the 
cause or I consenting to it in the least degree." ' 

It is not at first Very obvious why mere solitude should 
be such a real and dreadful punishment . ' That it is a waste 
of life, dreary, useless and unprofitable, might well be 
pretty clear to anybody who was not steeped in that 
fool's philosophy which has been hit off in the saying 
" Confine the leopards in separate cages, the cages will 
take their spots out while ye're sleeping." Dickens 
expressed the great heart of the people when he wrote : 
" It seems to me that the objection that nothing whole- 
some or good has ever had its growth in such tmnatural 
solitude, and that even a dog or any of the more in- 
telligent among beasts would pine and mope and rust 
away beneath its influence, would be in itself a sufiicient 
argument against this system." But the effects of 
solitude are definitely known now. If we do not kill 
time, then time kills us. It required experience and a 
long series of hideous experiments in vivi-sepulture, 
to make us realise that the human brain— and more es- 
pecially a thinking one— -has that strange quality of self- 

' American Notes. 

2 " It has pleased the Creator to implant in man that feeling of 
attachment to society, that to be withdrawn from his fellow creatures 
was a punishment compared to which the torture, the rack or the 
stake were vulgar and inefficient." — A Recorder of Birmingham, 
quoted by Field, Prison Discipline, vol. i. p. 328. 



200 A HISTORY OF PENAL METHODS 

consumption. The process is slow but certain ; other 
punishments might be " mercifully " put aside ; the 
cell would do its work. "We know," wrote Major 
Arthur Griffiths, " by the light of our modern experience, 
that solitary imprisonment prolonged beyond certain 
limits is impossible except at a terrible cost. The price 
is that the prison becomes the antechamber to the mad- 
house, or leads even to the tomb. It has taken years to 
establish thisnow incontrovertible conclusion, but it is now 
so distinctly known that argument seems superfluous." ' 
Oh, but it has been hard to bring this home to those in 
power ! That the prisoners dreaded it beyond description, 
was held to be one more argument, if any were needed, in 
the system's favour. 

It required the genius of Dickens, the minute and vivid 
accuracy of Charles Reade, to gain a hearing with the 
multitude and shake the system to its dungeon depths. 
Even then it required years of continued failiure, deaths 
and outbreaks of mania, with constant recommittals and 
crimes ever continued, which things could not be always 
shelved and put away, to bring the system to an ever- 
lasting end. 

^ Millbank, p. 145. 

See also Secrets of the PHson-House, i. p. 265. Re Belgium. 

Departmental Committee, 1895, p. 508. Re Italy. 

Jebb, Report for 1847, p. 103. 

Evidence of Captain Groves. Gordon Ryland's Crime, p. 200. 



CHAPTER X 

PENAL SERVITUDE : THE PANIC COMMISSION 

" Deprived of hope and freedom at a blow, 
What has he left that he can yet forego ? 
Yes, to deep sadness sullenly resigned. 
He feels his body's bondage in his mind. 
Puts off his generous nature, and to suit 
His actions to his fate, puts on the brute." 

COWPER. 

/ THE refusal on the part of our colonies to receive any more 
( convicts compelled the Government to abandon the old- 
'; time transportation which might have been made such 
\ a mighty agency for good, and which, in spite of all 
i: its actual infamies and cruelties, has left some worthy 

n>onuments. 
■^ There had always been a certain number of poor 
creatures left behind, probably cripples, half-mad people, 
and more or less medical cases, whom it was considered 
inadvisable to dispatch with the more fortunate majority 
across the seas. 

They were mostly kept upon the floating prisons or 
hulks, which lasted from 1778 till the remaining one 
was destroyed by fire in 1857 ; and which were, in fact, 
the first prisons employed for convicts who were neither 
executed nor transported. A few are said to have 
lingered in the local prisons — there were no others — and 
their condition was presumably very pitiable. 

But the time came when nearly eight thousand convicts 
had to be disposed of upon English ground, and special 
prisons were then erected to carry out the latest form of 
pimishment. 

The first of these was opened at Portland in 1848 ; 
the next was Dartmoor/ which had once held some 

* For some astounding stories about that place, the reader is referred 
to Basil Thomson, The Story of Dartmoor Prison. London, 1907. 

201 



202 A HISTORY OF PENAL METHODS 

thousands of French and American prisoners of war, 
and which was repaired and reoccupied by convicts in 
1850 ; Chatham came later about 1856. 

The iirst Penal Servitude Act was passed in 1855.' It 
abolished all sentences of transportation of less than 
fourteen years' duration, and, recognising that the new 
punishment was to be far more penal, it made fotir years 
of it to correspond with seven years beyond the seas, 
and other sentences in like proportion. 

As usual, one State decree is soon amended or super- 
seded by another, and in 1857 came the second Penal 
Servitude Act, which did away with transportation 
altogether ; made the sentences of the new punishment 
to be as lengthy as those of the milder one, but fixed the 
minimum sentence at three years. 

The general scheme of the new system was that there 
should be three stages : firstly, twelve months of strict 
cellular confinement ; secondly, associated and chiefly 
out-door labour on the public works; thirdly, con- 
ditional release for the period of remission earned by hard 
work and good conduct, upon ticket of leave, which was 
always liable to revocation. 

Without going into minute details, we may say that 
the remission which could be earned consisted in one- 
fourth of the public works period for men, ' and one-third 
of the whole sentence passed on women. Life sentences 
had no remission, but were reconsidered in those days at 
the end of twelve years.' 

A word must be said in passing about this preliminary 
term of separate confinement. It was originated in 1842 
by the then Home Secretary, Sir James Graham, and 
was intended to be purely reformatory. Later on, says 
the official report, " The original intention * . . . appears 
(fifteen years after) to have been lost sight of," and " the 
main object of the separate confinement had come to be 
deterrence." ' It would not be too much to say that 
the whole design of the prison system " had come to be 

1 Report Royal Commission of 1879, p. vii. 

' Ibid. p. xvii. 

' Report Commission of 1863, p. 69. 

* Committee of 1895, Report, p. 27. 

* Ibid. p. 28. 



PENAL SERVITUDE 203 

deterrence," until within two years of the conclusion of 
the nineteenth century, as we shall see. 

From the many experiments already made it was 
discovered that twelve months in a solitary cell was 
more than could be borne by men who had the dismal 
outlook of a long subsequent sentence to reflect and 
brood upon. It was therefore reduced to nine months 
in 1853, that being thought to be about the longest period 
that the average convict — (and all through the prison 
system the head was forced to fit the cap, and if it didn't, 
so much the worse for the head) — could safely endure, 
although this was considered harmful by some of the 
officials, and even by a severe governor like Captain 
Groves ; ' but nine months it remained for nearly half a 
century. 

The next stage was to be that of labour on the public 
works : at Portland the convicts built the mighty break- 
water, at Dartmoor they reclaimed land from the bogs, 
at Chatham they dug huge docks out of the mud of the 
Medway. All this was good and useful work ; but the 
spirit of fear, not the spirit of progress, hung over the 
place — every day and every task was all along sub- 
ordinated to the grim purposes of punishment. 

But in 1862 occurred events which were to set back the 
clock of penal reform for five-and-thirty years, and were 
to make our convict prisons a worse doom than Siberia. 

According to the official retinrn there were, in the latter 
half of the year 1861,'' seventeen cases of robbery with 
violence, which was a bit below the average. But in the 
corresponding six months of 1862 a dangerous gang of 
criminals hung about the streets of the Metropolis, and 
the figures rose, that half, to eighty-two. 

A number of brutal assaults, and especially an attack 
upon a member of the House of Commons, created a kind 
of panic and a newspaper campaign. At the November 
Sessions for 1862 a whole batch of these offenders were 
convicted before Mr. Baron Bramwell.' A Return of 
December 4 of that year gives the names of twenty-four 
prisoners, only two of whom were over thirty ; fifteen 

' Gordon Rylands, Crime, p. 202. 

» Report Commission of 1863. Appendix, p. 180. 

3 Ibid. p. 136. 



204 A HISTORY OF PENAL METHODS 

were more than twenty years of age, the rest being 
probably what we should now call Hooligans, and of the 
worst sort too. 

It is instructive to notice that nearly all the garrotters 
of 1862 were fitting and worthy products of one or other 
of the monstrous " model " systems which we have been 
examining. A few had been shut up in MUlbank > under 
Mr. Nihil, the clerical faddist ; one of the men convicted 
had been a warder there. They all received tremendous 
sentences, and that particular gang and outbreak were 
made an end of. But not, unhappily, the panic which 
was produced, for m July of the following year, 1863, a 
Bill was passed to punish all such outrages with the cat,' 
Mr. Wharton naively expressed the position when he was 
trying to get another flogging Bill through the Commons, 
in the year 1 90 9 : "A member of the House was garrotted 
at the Duke of York's Column on his way down to West- 
minster, and upon this the House, he would not say passed 
—rushed the Bill through." ' 

Nothing has been more widely misconceived than this 
unfortunate Garrotters Act of 1863, for the fact somehow 
got loose into print and parlance, that the threat and 
use of the cat alone had actually put down robbery with 
violence. I read the statement of a bishop a few days 
back ; this may have been faith, or it might have been 
hope on his part, but it certainly was not accuracy ; for 
it did not. That particular gang was clearly captured and 
broken up before the Act in question became law. That 
these crimes are not stopped can be easily perceived in 
the newspapers any day. It is true that, for the moment, 
the victims are not generally choked by mufflers, any 
more than they are now throttled by fashion with a stiff 
stock, or, if women, inflated by crinolines. But such 
details relate to the manner and not to the matter of the 
offence. Localities have their peculiarities : the sand-bag 
is the usual mode in America ; the lasso was employed in 
the south of France, where I used to live years ago ; last 
week, as I was revising these pages, a man had paper 

1 Griffiths, MUlbank, p. 432. 

" Some were ticket-of-leave men." — Therry, N.S.W., p. 503. 

' H. B. Bonner, The Gallows and the Lash, p. Z7, 

Chitty's Statutes, vol. iii. p. 286. London, 1912. 

' The Times, March 29, 1900. 



PENAL SERVITUDE 205 

covered with treacle placed over his face, while the 
robbers captured his bag. All these are local details, 
which alter with times and places where crimes occur ; 
but the real offence has never been stopped, and never 
will be, merely by punishments. For strife and evil have 
their roots in bad social systems, and are not to be re- 
moved by anything so simple as cruelty : that was tried 
first of all, hundreds of years ago. 

But much more followed : in 1863 a Royal Commission, 
breathing fire and brimstone, was appointed to look 
into the state of the prisons, and the effects of its report 
Were bitterly experienced by the convicts through many, 
many long and hopeless years. 

It is well to remember that the system which it found 
to be in force was by no means a humane one. Said the 
Report : 

" A very general impression appears to prevail that the 
system pursued in these prisons is not of a sufficiently 
penal character ... we consider that, upon the whole, 
this impression is erroneous. The life of the prisoners is 
extremely monotonous. Having been used in most 
cases to constant change arid excitement, they are de- 
barred from all pleasures, they are compelled to pass 
their time in dull unvarying routine of distasteful labour, 
and at the close of each day's work they return to the 
cheerless solitude of their cells." ^ 

Yet, working on the old and untenable hypotheses as to 
human conduct, the Commission considered that penal 
servitude could not be sufficiently dreaded, because 
persons who had been through it were " not effectually 
deterred from pursuing a course of crime by the fear of 
incurring this punishment again, which is shown by the 
fact that a large percentage of those discharged from 
convict prisons are known to be reconvicted." " 

So the Commission proceeded to make prison life harder 
and more dreary than ever ; and, as it is one of the grim 
truths of life, that while it requires greatness and wisdom 
to do good, yet even the smallest and meanest creature 
can give pain, this purpose was effectually accomplished. 

They tried to make seven years the minimum sentence 

1 Report, 1863, p. 41- 

2 Ibid. p. 23. 



206 A HISTORY OF PENAL METHODS 

(it was fixed, however, at five years), and finding that 
after long terms of years convicts had been able to earn 
what may be called " deferred pay," amounting some- 
times to £^0 or £40, even, it is said, to £80, * they determined 
to make his restart in honest life more " probable," by 
limiting his money to ^3, or, as an utmost limit, for 
specially good conduct, to £6. 

After the Penal Servitude Act of 1864 a mass of cast- 
iron, mostly senseless and barbarous rules, were drawn 
up and fixed by Act of Parliament, and the great world- 
flow of crime, disease and misery went steadily on, and 
was about as much affected by these crude and barbarous 
regulations as were the Channel tides. 

• Enc. Brit. 



CHAPTER XI 

THE MILITARY DESPOTISM 

"A liell to love unknown, a whited tomb 
Where hearts may break and wither and fever burn 
Gnawing unsoothed, and pining atrophy 
Sap reason slowly from its citadel." 

Book of Chains. 

The Prisons Act occasioned by the last Commission 
riveted the new system together ; bound it in red tape 
and iron ; made it, in fact, a terrible machine that slowly 
ground its prisoners to pieces. 

And Crime, having so little to do with prison systems, 
continued very much the same. Some fifteen years later, 
in 1878, another Royal Commission sat to see how things 
were going on. It certainly accomplished little that was 
good, and when we review the horrors unmasked before 
it. and consider the criticisms that it left behind, we 
can only say that in sheer hide-bound brutality it was 
extremely like its predecessor ! 

Such a description applied to the sovereign's " Right 
trusty and well beloved " may sound exaggerated, but 
nothing that we could say would prove so damning as the 
admitted facts ; and to these then let us go I 

In 1872 a Russian nobleman and a member of the 
Howard Association went down to Chatham Prison, and 
were much impressed with what they saw : " it is magnifi- 
cent," they said. The prisoners had warm jerseys and good 
boots, and anof&cial remarked, " These men are in many 
respects better off than the honest labourers outside," 
with much more of the same sort. 

Now it was really a somewhat unfortunate time and 
place for these gentlemen to go into ecstasies, because 
in that very prison, about the 'seventies and maybe for a 

1 Royal Commission of 1879^ p. 208, 
207 



208 A HISTORY OF PENAL METHODS 

few years before, occurred some of the worst atrocities 
in the whole convict service. 

The labour there consisted in the excellent and useful 
work of digging out the huge dock basins, and the wet and 
stodgy clay was carried off in waggons drawn by an engine. 
But if the task was good, the spirit of the place was evil, 
for it had grown to be quite a common practice for men 
to cast themselves beneath the wheels, so fearful was the 
discipline, so absolutely unendurable became their lives ! 

What the true character of the place was, will easily 
be perceived when we consider what was done to meet 
these actions, which were prompted by despair. 

In a Blue Book of 1872, besides the usual minor mutila- 
tions so common in the cruel convict prisons, there were 
reported no less than seventeen cases of prisoners wilfully 
fracturing their arms and legs imder the engine. 

The prison surgeon reported that they " were of so 
severe a character, that amputation was immediately 
necessary in most cases, as the limbs were so mangled 
as to preclude any hope of recovery." Before the Com- 
mission of 1879 the then governor was asked if any 
measures had been taken to prevent these fearful mutila- 
tions, upon which he replied : " Yes, we took very severe 
measures ; a great many men were flogged, and we took 
precautions. We did not allow them to be near the 
engines when they passed. A great many of the men 
who mutilated themselves were afterwards flogged."* 
And then Major Farquharson adds a sentence which well 
reveals the spirit of the place, and of the man. " There 
was no reason why they should not be flogged because 
they had only mutilated an arm or a leg." ' Can the 
harsh records of any other time or place upon the poor 
outraged earth go much further than this in glaring in- 
humanity ? 

Besides the ghastly atmosphere of that " grim joyless 
silence"' which has often been spoken of as a special 
feature in English convict life, there is abundant evidence 
that the prisoners at Chatham were very insufficiently 
fed to perform the heavy kind of work they had to do.* 

1 Roy. Com. 1879, p. 210. » Ibid., p. 627. 

' George Griffilii, In an Unknoum Prison Land, p. 130. 
* See Evidence of Dr. Campbell, Royal Com, 1879, p. 57S 



THE MILITARY DESPOTISM 209 

The result of this was the horrible practice of eating 
candles, and even refuse/ which has been a not infrequent 
custom in all the convict prisons. A former Governor 
of Portland says : "At Dartmoor and other prisons, the 
practice of eating candles is extremely common ; the 
prisoners stir their gruel or cocoa with a candle, and 
they then drink the compound . . . they have an idea 
that it is more savoury,' it produces a fatty coagulation 
on the top, which in winter they think palatable." The 
Commission, it appears, considered that this candle or 
refuse eating did not arise from want of food ' — a conclu- 
sion which, as Dickens said of the workhouse Board, could 
not have been arrived at by people of merely common 
intelligence ; but that the prisoners desired to eat more fat 
than the dietary afforded. The truth is that the system 
struck a rough average as to how much could be endured 
and how little could be eaten, so that nearly all were in a 
state of perpetual himger, and some were very nearly 
starved to death. 

But while a state of semi-starvation (allowing for a 
certain amount of bulimia, morbid appetites, etc.), was 
quite the normal condition of the mass of the prisoners, 
Chatham had been particularly inhuman in all respects.* 
The remedy employed there for candle eating was to 
place each one in a sort of wooden measuring-box," and 
if the candle vanished too fast, the convict had to stay 
in the dark imtil his turn came for another. But the 
military martinet who was then governor possessed at 
least one virtue amidst his crimes — he was so very frank 
and outspoken. The average prisoner, if he were sane 
and moderately wise, knew better than to make complaints 
to the authorities, for they had little chance of any 
impartial hearing, and were very likely to be termed 
frivolous, and therefore to entail fresh punishment. But 
the half-mad and weak-minded were generally full of real 
or self-imagined grievances ; they were continually break- 
ing the rules — and in a place where almost everything 
seemed to be expressly prohibited, this was not difficult — 

* Royal Commission of 1879, p. 355. 

s Ibid. p. 680. 

' Ibid. p. xxxviii. 

« See Committee of 1895 ; Evidence, pp. 330, 571. 

» Commission of 1879, p. 622. 

14 



210 A HISTORY OF PENAL METHODS 

and must have had an awful time of it, for they were beii^ 
continually punished for the sake of the " discipline." ' 

To appeal to most governors appears to have b^n both 
useless and decidedly dangerous for the appellant ; but the 
Major put the case with bluntness that rather astonished 
the of&cial committee. " I always show the prisoner," 
he said, " that I take the warder's part,' but if I am at 
aU doubtful about the matter, I only admonish the 
prisoner." The word of a warder, he admitted, was abso- 
lutely decisive in ever\- case ; it was not this circumstance, 
however, but only the major's manner of stating it, that 
seems to have been unusual. The Governor of Strangeways 
Prison, examined before the Committee of 1894-5, gave 
it as his opinion that whenever a prisoner brought a 
complaint before the visiting justice, he usually received 
punishment under all circumstances.' 

But the practical impossibility of obtaining redress for 
anything may be realized from the statement of a former 
inspector of prisons, that he had invited complaints from 
some 5,000 prisoners ever\- month for fifteen years, and 
though hearing many petitions, he has left us this record : 
" I cannot call to mind a single case of well-founded com- 
plaint of iU-usage of any of the gaol officials." * Thus 
we see that out of no less than 900,000 possible cases 
(5,000 X 12 X 15), necessarily involving a large number 
of officers, who were presumably not all quite admirable, 
no single complaint was held to have beoi well-founded. 
Hum! 

There was another grievance which, repellent as it is 
to discuss, yet caused too much unspeakable distress to 
be quite passed over. In the earlier ceDs there used 
to be a complete system of sanitation ; but later on, the 
closets weie aU removed, partly on the ground of health, 
but also because the drains-pipes sometimes occasioned 
the awful prison sin of " communicating." The change 
was approved by the commissioners in 1870,* and in 
certain ways it was good, because it took the men out of 
their cells. But it is horrible to find that very often 

'■ See, ior instance, evidence of Capt. Harris : Com. of 1879, p. 675. 

' RoytU Commissioit of 1879, p. 630. 

' Committee of 1 495 , p. 260. 

* Ardiar Gnffitiis, Secrets of the Prison-House, p. 4:2. 

' Report 1870, parasraph 29. 



THE MILITARY DESPOTISM 211 

they were not let out ; ' even the placid commissioners 
who sat in 1878-9 drew special attention to this monstrous 
evU, and thought that there was real cause of complaint.' 
At night the state of things became even worse ; ' some 
Governors and certain prison Doctors had ordered that 
the cell utensils should not be used without special leave, 
on pain of report and probable pimishment ! Thus, from 
locking-up time, 6.30 at the latest, to 5 a.m. an action of 
the bowels became an offence,* and no prisoner could be 
let out of his cell till unlocking time in the morning, for 
the warder on night duty had no key. At one prison the 
ftmction was allowed once a day ; ' at another there was 
an appointed hour.* The pretext given for these incon- 
ceivable prohibitions was that the prisoners often tried 
to annoy their neighbours and the officials by making 
use of cai:ain vessels at night ; but this story is rebutted 
by other prison authorities.' WTien we remember the 
reported difficulties of the convicts in finding opportunities 
during the daytime, we can perhaps understand the 
degree of suffering and sickness, fear and ptinishment, 
that such a monstrous forbidding of the natural needs 
must have entailed upon the inmates of the cells.' 

1 Royal Commission of 1879, vol. ii. p. 341. 
» R. C. 1879, Report, p. xliv. 

* Royal Commission of 1879, vol. ii. p. 146. 

* Ibid. p. 178. 

^ R.C. 1879 ; ColvUl's evidence. 

• Ibid: Qaestion 1726 in vol. ii. 

' See R. C. 1879, Evidence, vol. iii. pp. 817, 877. 

• See also the more recent criticism by Oscar Wilde : " The Case of 
Warder Martin," written in 1897 and given in De Profundis, p. 179. 
London, 1908. 



CHAPTER XII 

THE SILENT SYSTEM 

Just as about fifteen years intervened between the Com- 
mission of 1863 and that of 1879, so there was destined 
to be a somewhat similar interval between the latter and 
the last Commission, which sat in 1895. 

The first two never for a moment seem to have re- 
membered that they had to determine the fearful after- 
fate of men and women ! The brotherhood of man and 
the great all-embracing fatherhood of God were notions 
which lay dead within their hearts ; and the elegant terms 
" criminal sewage " and " human refuse " expressed their 
attitude towards the fallen. The last Commission was 
composed of different men, and throughout acted alto- 
gether in another spirit. At last a really independent 
body was granted powers to survey the system, which 
had been spared so long because its secret working was 
not open to the world ; and many of its recommendations 
were made law by the new Act of 1898, which marks at 
once an end, and a beginning of the long-withholden dawn 
of better days. 

Beyond doubt during the last decade or so, that is, up to 
1898, the penal machinery had been rendered more and 
more severe. Every screw was tightened, every time-dis- 
covered crack, through which, perchance, a little stray 
illegal light had penetrated, was very soon stopped up 
by some new red-tape rule.' 

There was a brisk revival of that very old " con- 
tamination " craze which had before produced the horrible 
cell-prisons in America, and given us the so-called " model 
system" here. 

About 1877 ' even the Sunday conversation at 

1 For instance, " To leave one's bed and pace the cell at night is a 
breach of discipline." — J. S. Balfour, My Prison Life, p. 44. 

2 R. C. 1879, pp. 165, 435. D. C. 1895, p. 341 

212 



THE SILENT SYSTEM 213 

exercise was stopped for all male prisoners, and the 
Dantesque walk round ring paths and in single file was 
introduced instead. 

People outside the wall, who know nothing of prison 
ways, will with difficulty realise to the full extent the 
misery this monstrous prohibition inflicted for some 
twenty doleful years. The House of Commons, where they 
talk too much, never really weighed and thoughtfully 
considered what it must cost to penalize a precious human 
faculty. Indeed, one of " Our trusty and well beloved," 
mentally looking down through the inverted glasses of 
oflftcialdom upon the lower orders, expressed surprise 
when a convict witness asserted that he would prefer 
to have the company of any human creature with a soul 
and shape, to trotting roimd and round a ring all by 
himself ! It was this same sapient legislator who imagined 
that those who had been many times convicted and held 
for lengthy periods in bondage would scarcely care, or 
ultimately notice, whether they were in or out of prison.' 

This cutting off of all communication, although of 
course it fell with very different effects upon various 
natures — the lowest and the more debased always suffer- 
ing least — came as a cruel hardship to the prisoners. Not 
so much, doubtless, to those in the local prisons, where the 
sentences were comparatively short (the outside limit 
being two years,* a period which has been generally 
condemned),' as the men passed nearly twenty-three 
hours out of the twenty-four within their cells.* But 
in the convict prisons the least term was five years (three 
after 1891),= and the unfortunate creatures, debarred from 
human influence for long stretches of time, strove hard, 
especially upon the public works, to snatch exemption 
from this ghastly regulation. 

There is no doubt that they did succeed in breaking 
the rule more or less, especially when under a lenient 
and good-tempered warder ; it is probable also that the 
enforced secrecy of the unlawful conversations promoted 

1 R. C. 1879, p. 188. 

2 R. C. 1863, Report, p. 75. 

3 D. C. 189s. P- 331 (Capt. W.). 
* Ibid. p. 304 (Dr. L.). 

R. C. 1879, p. 78 (Capt. H.). 
s n. C, 189s, p. 228 (Col. G.). 



214 A HISTORY OF PENAL METHODS 

a good deal of coarse and undesirable whispering. But 
most certainly a huge number of prison punishments 
continually arose from this barbarous ukase ; the hungry 
were deprived of their scanty food, and those ahready 
captives were shut up close in isolated cells, prisons 
within the prison ! 

The speech-ban placed an appalling power in the 
warders' hands, and that it was sometimes abused appears 
to be too certain, for in every considerable body of men 
there will be found those who are hasty, those who are 
bad-tempered,, and those who must be spiteful and 
malicious. Woe then to the prisoner who ever, rightly or 
wrongly, had once incurred this sort of warder's hatred, 
or who happened to be placed under a bully's charge ! 
That special sin, attempting to communicate, stood 
ready like a loaded stick within the warder's grasp ; 
against , his word there could be no defence, and the 
prisoner's abject position had been vividly portrayed by 
the late invalid lady " E. Livingston Prescott " (Miss 
Edith Spicer-Jay) in her book Scarlet and Steel. 

Bad men there have no doubt been in the prison service, 
indeed the villainy and cruelty of some of them would be 
impossible to siu'pass and not easy to equal anywhere, 
in prison or outside. At the same time, a warder's life was 
an extremely trying one, the hours were exceedingly long, 
the surroundings depressing and dreary, and there must 
often have smouldered in the minds of the more thoughtful 
and discerning officers a feeling of revolt and detestation 
against that huge remorseless mill of man, which ground 
so slowly and so small, and left but wreckage, broken 
hearts and tears ! 

Moreover, besides the sullen, the desperate, and the 
half-mad, there were always a certain number of ad- 
mittedly weak-minded prisoners, classed under what had 
become a very cormnon formula as being deficient of 
intellect but not insane. It has been granted on all 
hands that these poor creatures were not as the others 
were, and it is said that they were sometimes encouraged 
and set on by other convicts of the vilest sort/ so as to 
be deliberately brought into collision with the ruling 
power. 

1 R. C. i879^Report,p, xliii. 



THE SILENT SYSTEM 215 

And sure enough the military martinets, following their 
habitual methods of indiscriminate brutality/ duly 
punished the weak-minded ones for the sake of example ; ' 
those who became more demented, used to be sent to 
Millbank and retained there under observation some- 
times for three or four months without any emplo5anent.' 
Mr. Hepworth Dixon gives a short accovmt of where they 
were sometimes placed.* " The dark cells at Millbank," 
he wrote, " are fearful places . . . You descend about 
twenty steps from the ground-floor into a very dark 
passage ... on one side of which the cells, small, dark, 
ill- ventilated, and doubly barred, are ranged. ... On a 
former visit to Millbank some months ago, I was told 
there was a person in one of these cells. ' He is touched, 
poor feUow,' said the warder, ' in his intellect. ..." They 
put him in darkness to enlighten his understanding . . . 
he was frightened with his solitude and howled fearfully.' 
I shall never forget his wail as we passed the door of his 
horrid dungeon. The tones were quite unearthly and 
caused an involuntary shudder." 

. It is only fair to state that these black cells were given 
up about 1876.' 

But there still remained a number of prisoners who 
were not considered mad enough to be sent away, who 
were perpetually in hot water, and who gave the officials 
a great deal of annoyance. Some of these unhappy 
creatures were almost always imder punishment, and 
their previous condition became worse and worse from 
semi-starvation under long-continued bread-and-water 
diet and a variety of other torments." Many were, or 
became in time, perfectly mad (the case is mentioned of 
a prisoner being made to wear a protective skull-cap of 
iron to save the head from being dashed against the 
wall !),' and some were no doubt very troublesome. 

1 R. C. 1879, Report, p. xliii. 

2 Ibid., Evidence, p. 243. 

3 Ibid., Report, p. xlii. 

* Dixon, London Prisons, p. 143. 
5 R. C. 1879, Report, p. xlviii. 

* Ibid., p. 126. 

^ Millbank, p. 207. Driven to frenzy by the solitary cells, prisoners 
would often " break out " and destroy everything around them, for 
which they were placed in jackets of canvas. One man at Millbank 
tore the very nails ofi his toes. See Griffiths, p. 388. 



216 A HISTORY OF PENAL METHODS 

But, all things considered, we shall generally find that 
the individual officers were far less cruel than the law. A 
great number of warders have often done their best to be 
humane in the face of that relentless and immovable 
machine in which they all were but as wheels. I have 
heard of many acts of care and kindness on the part of 
people in whom one would little expect ever to find them, 
and I am glad to know that even within the shadow of a 
prison there still lie hidden springs of charity which 
regulations do not always dry ! 

We may naturally wonder why the superior officers in 
the prison service, and especially the chaplains, made in 
the course of years little effective effort in the cause of 
humanity and reform. But it must be remembered that 
they were very much in the position of junior officers 
under a hard and self-willed colonel ; their protests, even 
if made, would probably be ignored, their reports could 
with the greatest ease be expurgated or suppressed ; pay 
and promotion rested absolutely with the ruling ring, 
which could not be defied. 

The governors and deputy governors were appointed 
by the Prisons Board, ^ and all the other officers, including 
chaplains and doctors, appear to have been chosen by 
the Chairman at his absolute discretion.^ There was 
practically neither examination nor outside control; 
the central authority could select any military or 
naval man to be a governor, and any clergjonan or 
surgeon to act in those capacities. 

Naturally, the management chose its own friends ; 
naturally again, those friends would be very unwilling 
to oppose the system planned out by their chief. And 
so it came to pass that all these went their way, 
and acquiesced ; performing their dreary duties and 
retiring, or dying, highly respected ; while men went 
mad or drooped and died around them, and many 
humble homes were rendered desolate ! 

But at least one prison chaplain did his duty, choosing 
that better part which has a higher and more urgent 
mandate than the commission of an earthly king. For 
many years the Rev. Dr. W. D. Morrison ' assaUed the 

1 R. C. 1879, p. 248. 2 D. C. 189s, p. 356. 

» Now Rector of St. Marylebone Parish Church. 



THE SILENT SYSTEM 217 

cruel and senseless prison machinery which callous and 
amateur legislators had devised, and then entrusted to 
more amateurs, to put in motion. Largely to his exer- 
tions we owe the appointment of Mr. Herbert Gladstone's 
committee by Mr. Asquith ; largely to that committee 
we owe Sir M. W. Ridley's Bill of 1898. 

And now we have embarked on a new road, which 
will lead us a long way on. 



CHAPTER XIII 

THE VISITATION OF THE SICK 

In all that dreary world within the wall there was one 
man to whom the prisoners might go for consolation, 
and that man was the Chaplain. But he too was an 
official appointed like the rest, he too was constantly 
surrounded by the familiar sight of systematic suffering, 
and had in the nature of things long since grown entirely 
accustomed to it. 

The Rev. Dr. Morrison ^ drew special attention to the 
danger of the hardening effect of this on any nature ; 
and to expect the real and unfeigned heart-sympathy 
(suffering with !) from a seasoned prison chaplain would 
he like looking for emotion in an undertaker over an 
ordinary client's funeral. 

The medical student generally faints on witnessing his 
first bad operation, but he cannot go on fainting ! Soon 
all personal compassion will surely pass away and he will 
become absorbed with scientific interest. We all must 
follow that merciful law — which has been said to reach 
even the prisoners after about six years ^ — by which we 
grow acclimatized to our surroundings in the course of 
time.* 

No man, however conscientious, can go through the 
same salaried duties, month after month and year after 
year, without becoming more or less professional, and 
drifting to some extent into a set routine. But, apart 
from what was unavoidable under the system, which 

1 D. C. 1895, p. 118. 

2 DuCane, Punishment and Prevention of Crime, p. 7. 

^ " It is to be observed," says General Sir Charles Napier, " that when 
men are charged with the infliction of any punishment (no matter how 
revolting it may be in its nature) they generally become desirous of 
adding to its severity ; their minds grow hardened to seeing such 
punishments inflicted, and they erroneously believe that the bodies of 
their fellow creatures grow equally indurated." — Military Law, p. 146. 

218 



THE VISITATION OF THE SICK 219 

made the clergy prison officials holding permanent 
appointments, actual conditions rendered the chaplain 
of very little value towards the consolation of his closely- 
tethered flock, even supposing that he was always really 
worthy of his calling. For he was practically unapproach- 
able. In the small local prisons he generally increased 
his stipend by taking duty in the adjacent town ; in the 
larger gaols the chaplain, with one assistant, might 
have to look after a passing population averaging about 
a thousand prisoners ; ' ten or eleven thousand thus 
drifting through the establishment in the course of a 
single year.' 

Consequently the captives in their separate cells could 
hold but little personal communication with the prison 
priest. This is clearly admitted in various reports the 
clergy have made out. For instance, we find the chaplain 
at one large prison explaining that, having eight hundred 
men to supervise, it was extremely difficult to visit them 
all, but still he tried to see each of them once a month.' 
Another chaplain somewhat similarly situated expresses 
the same intention, and adds that the schoolmaster 
has also paid a monthly visit of ten minutes to each 
prisoner.' At the public works the convicts saw even 
less of the chaplain, and many had to go from one 
year's end to another without a solitciry visit from 
him.^ 

Even in a recent report the chaplain at a convict prison 
tells us that he endeavoured to see each man twice in 
the course of the year, but found that with the pressure 
of his many other duties it could not be managed.' But 
if the prisoners saw nothing of their chaplain as a man, 
they appear to have had a great deal too much of him in 
the light of a preacher.' 

For years together — while lads developed into manhood 

1 R. C. 1879, p. 264. 

2 D. C. 1895, p. 122. 
" R. C. 1879, p. 436. 

* Ibid. p. 496. 

6 D. C. 1895, P- 297. 

Five Years' Penal Servitude, ch. ii. London, 1882, 

• Report, 1901, p. 562. 

T See also H. J. B. Montgomery, Nineteenth Century, Feb. 1904 ; 
Adolf Beck, Evening News, August 11, 1904; and Harold Begbie, 
Broken Earthenware. 



220 A HISTORY OF PENAL METHODS 

and adult convicts became bowed and grey — the same 
clergyman would drone forth the unchanging chapel 
service ; and through the period of prayer, as at all other 
times, armed warders would be ever watching lest any 
head should turn, or lest some miserable convict might 
convey by whispered word or secret signal some sign 
or greeting to a fellow prisoner, or send some human, 
meaning-laden message that was not stamped upon official 
forms ! 

The Christian Church has long since given up its ancient 
claim to right of sanctuary, and seems somehow to be no 
longer able reaUy to forgive. It is not easy to restore the 
erring, or, in the midst of wide dishonesty, to rehabilitate 
the weaker few who have been once foimd out. 

Over the prison service the evil spirit of punishment 
hung always heavy like a pall ; and the black blur of the 
broad arrow, the wrathfii talon-mark of the avenging 
State, is deeply stamped upon those books which else- 
where bear the cross. 

There remained one real oasis in the great whitewashed 
desert of negations forming the penal system ; and that 
was the infirmary, which has been well termed the gaol 
paradise. To gain admission there — even though, in 
those days, it entailed a lower number of obtainable 
remission-marks — all manner of desperate devices were 
continually resorted to. Irritating coloured matter, such 
as bits of wool or stitches from a garment, were often 
introduced beneath the skin to set up artificial sores. 
Powdered glass was sometimes swallowed, so as to bring 
on blood spitting ; and not only would the convicts maim 
and horribly mutilate themselves in all manner of ghastly 
ways (one poor creature once sewed up his lips and 
eydids with needle and thread),^ but it is stated that 
men would often inflict grave injuries on fellow prisoners 
upon the latter's urgent supplication ! ' 

From what we have already seen of the spirit regulating 
prison matters in the nineteenth century, we shall not 
surely be surprised to find that the oasis was not looked 
upon with favour by the grim governing powers. In 
Charles Reade's day the infirmary was the " spot in the 

' Griffiths, Secrets of the Prison-House, p. 195. 
» D. C. 189s, p. 326. 



THE VISITATION OF THE SICK 221 

sun," a blemish to the perfect — cell ! The Commission of 
1879 reported that at that time some prisons were having 
separate infirmary cells built/ so that, except in very 
special cases, even the sick and dying should be left 
alone I 

" By this means," said the Commissioners, " convicts 
are cut off from opportunities of commimicating with 
each other, which are liable to be much abused. This 
improvement should be extended to all prisons!"^ 
One of this select body — it was that same legislator who 
in 1878 imagined out of some comfortable inner con- 
sciousness that the many-times-convicted prisoners must 
have become indifferent to pain and punishment — even 
asked if all the sick in hospital might not be kept alone ! 
And although this truly infamous idea — worthy of crass 
and heartless ignorance of human needs and feelings — 
was not carried out in its entirety, a good many separate 
hospital cells were no doubt subsequently built and 
occupied. The author of Five Years' Penal Servitude ' 
says just a passing word about these dreary cells, into 
which he once peeped through fastened iron gates, wherein 
the invalids were isolated, locked and left. But even 
when the prisoners were not in single cells the fear of 
some extraordinary contamination would seem to have 
been ever haunting the official mind — at least if the sad 
scene described some few years back by an eminent 
Queen's Counsel and M.P. may be considered as a fair 
example. The food and raiment Mr. Richards considered 
to be satisfactory, but he wrote that he felt " for one 
poor dying prisoner who lay in his bed alongside a less 
sick companion, with a war^der on guard to prevent any 
speech — a punishment which svurely is greater than any 
crime deserves." • 

Whatever may have been the circumstances surrounding 
the case just alluded to, it is quite clear that even the 
conversation of those prisoners who were seriously ill — and 
only such would be passed into the infirmary by the 
suspicious, ever-watchful prison surgeon — was held to be 

' See also Punishment and Prevention of Crime, p. i6i. 

2 R. C. 1879, Report, p. xliv. 

3 Ch. ii. 

« The Sun, Sept. 5, 1896. 



222 A HISTORY OF PENAL IklETHODS 

corrupting in its influence, a vdew which to my mind ' 
stands as a \Tle and imjust slander against human nature.' 
monstrous in theors' and unwarranted by facts. 

And yet this veritable blasphemy against the soul still 
has effect in some parts of the world. I was once ^^siting 
a Continental prison in the year 19 — : it was much like 
ours used to be — so clean, bare of all dirt as of all s\Tn- 
pathy, a whited sepulchre ; and the sick were alone in 
cells. One of them was an old man whose face was 
puckered with weeping. " Cheer up," said the Chaplain, 
a particularly healthy-looking man with a fat red face ; 
" it's not so bad after all ! " And the old man lay in 
bed mumbling, as I looked into his eyes to show him that 
I was at least a stranger and not a prison official ; he 
had been there over eighteen months, and was to be 
out again in six weeks (many in that drearj' place were 
not to leave their cells for as manj' years) , but the chaplain 
told me that they believed that his mind was giving way. I 
told them what I thought of their System — but not exactly 
in the way I should have liked to bring truths home ! 

Although, as I ha\-e said previously, the individuals 
working the penal system of any land are mostly better 
than the State which they serve, yet there are men who 
seem to grow hardened by their horrible employment. 
(I am told that many of the kindlier prison people throw 
up their posts and take to more human work.) One 
such case is mentioned by Major Griffiths. There was 
a hospital warder of the old school, who is described as 
ha\nng been " tied and bound to red tape, ever insisting 
upon the punctilious observance of the rules for tidiness. 
^^'oe to the patient, however iU, who allowed his bed- 
clothes to be imtidy, or failed to arrange his sheet in a 
perfectiy straight line under his chin ! " * He must be 

1 See Dostoevsky, Sottvenirs de la Maisou des Moris. Paris, 1886. 

F. Scougal, Scenes from a Siltni World. Edinburgh, 18S9. 

" The only really humanising influence in prison is the influence 
of the prisoners." — Oscar Wilde, De Profundis, p. 181. 

" All the vices of the old gaol system are nothing compared with 
the diabohcal effects of solitude on a heart smarting with daily wrongs." 
It is Xgver too Late to Mend, chap. xii. 

"... Our model and modem penitentiaries being a hundred times 
mor« corrupting than the dungeons of the middle ages." — P. Kropotkin, 
Paroles (futi RSvoUi, p. 243. Paris, 1885. 

* Fifty Years of Public Service, p. 179. 



THE VISITATION OF THE SICK 223 

long dead now, and will torment nobody any more. I 
remember, a few years back, an inquest upon a soldier who 
had been committed for trial and had died of pneumonia. 
The jury added a rider saying that the wards ought to be 
made more comfortable for unconvicted prisoners. Only 
the unconvicted ? Surely there can be few such mon- 
strous crimes in all the records of this world of woe, as 
firing on the wounded or as punishing the sick.' 

' I was rejoiced to read in the Report of the Prison Commissioners for 
1906, that the opaque glass was being removed from out of the windows 
of the convict prison hospital : but imagine the minds of the " old 
gang " who put it in ! 



CHAPTER XIV 

MONOTONY 

"But neither milk-white rose nor red 
May bloom in prison air; 
The shard, the pebble and the flint 

Are what they give us there ; 
For flowers have been known to heal 
A common man's despair." 

The Ballad of Reading Gaol. 

Busy people, full of health and action, have sometimes 
gone over a convict prison, noted the clean cells and the 
weU-kept corridors, and have then compared the place to 
a very dull country house ! You must not make things 
too comfortable, is a Very common observation ; and off 
go the critics through the kaleidoscopic scenes of life's 
great ever-shifting pageant with just a faint sort of 
impression of having had a glimpse of everlasting Simday ! 
But these kind of comments only emphasize once more 
the unfortimate fact that sympathy depends upon the 
power of imagination. It is this same want of insight 
and of imderstanding that draws forth laughter at the 
lunatic, and childish glee before the pain-imparted antics 
of performing animals. 

Monotony : the free world lightly uses words that only 
slaves can feel. " There are elements in the agony of 
life," wrote a prison visitor of many years' experience, 
" as it is meted out to the inmates of a prison which have 
no place in the sorrows, cruel as they often are, of the 
poor and helpless without its walls." ' Such terms as 
"dull" and "uncomfortable" may be applicable to 
the occupied and the free, under their various circum- 
stances, but they are shallow sounds to express what 
prison means to all but the most brutalized ; we might 

1 Scenes from a Silent World, p. x. 
224 



MONOTONY 225 

as reasonably talk about the " discomfort " of cancer, 
or of the dullness of the grave ! 

Those bright and breezy birds-of-passage visitors who 
talked about the " dull country house " would have 
noted the grey-clad arrow-spotted groups at work in 
sullen silence. Did they at all realize that every one of 
the scarecrow figures that may have shuffled shyly by, 
or been halted like a beast, or put face to the wall like 
an ill-managed school kid, had been consigned there 
for at least three years (five, before 1891), and that not 
a few were surely doomed to that most dreary place for 
ten, fifteen, even for twenty years ? Did they remember 
that some of the prisoners they saw before them, from the 
stern stress of all-etiolating time, would never more be 
free to walk the earth, or look again in liberty upon those 
faces they had loved and known ? But besides these 
long-apportioned periods there yet remained one sentence 
in which no remission marks could be obtained, and to 
which no definite extent had been assigned by law ; 
that was the term for Life. A long while ago such cases 
used to come up for consideration at the end of a dozen 
years ; but this was later reckoned as too short an inter- 
val of time by busy and ambitious men in power, and 
outside ! * The Commission of 1879 discovered, and of 
course approved, that at that time life sentences were not 
again brought under examination till after no less than 
twenty years had come and died away. 

Even this doom did not appear to be sufficient punish- 
ment to " Our trusty and well beloved," who would 
willingly have introduced those hideous sentences of 
actual lifelong penal servitude which are unhappily in 
force in certain foreign countries to-day. Our coimtry 
stands free from this reproach, and a life sentence generally 
means in practice about twenty years. And although 
there still remain too many fatal illnesses and deaths 
which take place in the course of unremitted years in 
convict prisons, sentences are now looked over (though 
not necessarily altered) at the end of every five years.' 

Monotony : that is the harmless-looking word, which, 
with that other one, accumulation, means so much in 

' R. C. 1879, Report, p. xxxiii. 
' On the highest authority. 

15 



226 A HISTORY OF PENAL METHODS 

prison life.^ Yet there is nothing so hard to bring home 
to the multitudes outside the wall, for they have never 
known it ! Some time ago a brilliant journalist and 
war correspondent went over a gaol, and wrote that a 
plain man who sees the warm, airy, light {sic), clean cells 
of a British prison, is apt to ask himself wherein, but for 
the necessary loss of liberty, the hardship of imprisonment 
consists.' This sounds very like the tale of the Irishman 
who is said to have observed, after an accident, that it 
was not the fall which had injured him but the sudden 
stop at the end of it ! The writer, who had led a very 
active, strenuous, successful life, did not pause to realize 
what was expressed the other day by a first-class prisoner 
who had served three months (which is not a long sentence, 
and first-class prisoners are very well treated) : " You 
have nothing to think of, nothing to begin, nothing to 
finish all day long. It was very wearying. . . ." ' 

So terrible is prolonged Negation that the panic Com- 
mission of 1863 recommended that certain special isolated 
cells should be constructed in the convict prisons, so that 
men should no longer have to be brought to London for 
trial (as was then the custom) for prison offences, because 
" The journey is considered a relief from the monotony 
of prison life and takes off much of the fear of being 
remanded to separate imprisonment." * What need we 
further to reveal what penal servitude has meant than 
this official statement that so unendurable was the ex- 
istence, that being taken to be flogged was yet considered 
a relief ! But there are thousands of well-meaning 
people who recoil from the red suppurating furrows of 
the obvious cat, and who are shocked at the idea of 
chains, who seem entirely unable to realize the meaning 
of a mind torture ! Yet I believe that the latter is in 
reality far worse, and men who ought to know have said 
so too. The late Dr. Guy of the Prison Service, whom 
no one familiar with his evidence would suspect of 
humane sentiments — being of course familiar with all 
the ordinary prison punishments, such as the black cell 

* See Never Too Late to Mend, ch. xviii. 
2 See Humane Review, April 1902. 
^ A speech by Earl Russell. 
« R. C. 1863, Report, p. 44. 



MONOTONY 227 

and long-continued brcad-and-water, (^t(-., which were 
unforced with merciless s(-vcrity in those ('vil cLiys — hris 
said, " I wish to (express my deliberate opinion, and 1 
liiivo no objection lo anybody knowing it, liial Hogging 
[which lie advocated for bolli sexes] is the niost merciful 
punishment wi; have." ' 

Again. Colonel Baker of the Salvation Army tells us 
that he found that some prisoners " would rather go to 
the. lasli than into solitary confmement," ' from which 
tliey would often beg upon their knees to be let off ; and 
wlien the present writer was in an Australian jjrison IIk; 
Governor told him that one rather troublesome convict, 
whom he had placed by himself to keep him away from 
the rest , had petitioned that he might n;ceive a flogging 
if only li(^ might then rejoin them 1 

So mucli do prison punishments, like many other things, 
differ from what they seem I 

i'lie chasm which gaped between the free without, and 
the e.ondomncd of that contracted world within tlu- wall, 
was year-long wide and generation dcei>. All that 
niiglit reach the prisomu's over the gulf would be the 
three monthly visit of half an hour (always supposing 
distance and ex|iens(^ i)ermitted) or the quarterly and 
much-ins])ecte(l letter — if tlu^se rare privileges were not 
to be f(irf(^ittHl for some prison offence. And while the 
great distance at which the convict prisons were situated 
from the Metropolis aud the Midhmd towns, etc., made 
it frecjuenlly inipossibh" for poor people to reach them, 
no token or |)hotograpli of either relative.s or friends was 
at that liuie allowed to be placed in the cell. In fact, no 
touch of nature ever might intrude into that artilicial 
whitewashed hell (he cruel State had made. 

It is curious also to note that any outside visitors were 
looked upon as beiu).; evil iullueuces, and conse<piently to 
l)t^ k(>pt away from the prisoners as carefully us the worst 
(■riuiiuals. No vivisectors could more object to tlie 
intrusion of the public into their operating sheds than the 
olli(-ials did to the entry within the gates of anybody 
whatsoever not belonging to the sworn prison service. 
" There is a great deal of sentiment in some people, ami 

> A'. C. 1863, AV/>oW, p. :47- 
• D. C. 1895, p. a;9. 



228 A HISTORY OF PENAL METHODS 

they, as visitors, might overdo their duty," ' said an 
inspector of prisons who is now dead, and whom I gather 
to have been a man of kindly feelings. And yet it is 
just this divine " sentiment " which is the only hope of 
reformation and stands the holiest possession of all our 
suffering humanity ! The effect of being long shut up 
is felt even by the picked and iron-nerved sailors who 
have to man and tend the lone-rock lighthouses. I have 
read that it has been found absolutely necessary to give 
them long and fairly frequent spells of work on the main- 
land. Yet they have surely nothing on their minds; 
they have companionship, pay, and tobacco, and are 
surrounded by the ever-changing open sky and sea. But 
the prisoner is shut up without any solace, beset by racking 
thoughts of sorrow and shame, sealed fast in a little cell 
which " differs from every other sort of apartment de- 
signed for human habitation, in that all view of external 
nature, such as might soothe and possibly elevate the 
mind, is with elaborate care excluded." ' 

The ground-glass windows, here alluded to, were men- 
tioned before the Commission of 1878,* and are among 
the many horrible " improvements " of the nineteenth 
century. I am sorry to learn that they have been intro- 
duced to some extent into the new French prisons also, 
but they are absolutely indefensible. 

The plea of security which was advanced about twenty 
years ago is no justification, as we shall perceive when we 
remember that clear glass is used to confine the largest 
snakes, and also to guard ships' portholes from the beating 
of the waves. I am glad to know that this malignant 
piece of cruelty does not meet with the approval of the 
present executive, and that blind windows will be removed 
and altered as soon as circumstances will permit of it. 
The cell has not infrequently been eulogised on various 
grounds by people who have never tenanted one ! Fortu- 
nately the late chief of the Detective Department, Sir 
Robert Anderson, whom we have just quoted, once had 
occasion to cause himself to be locked up for a few hours 

1 See article by J. M. Price, English Illustrated Magazine (1893-4), 
p. 1225. 

» Sir Robert Anderson, Ninetenth Century, March, 1902. 
' R. C. 1879, p. 190. 



MONOTONY 229 

with a political offender, and he has left us his impressions 
of that time. " I seemed," he wrote, "to be in a pit. 
There was no want of air, and yet I felt smothered. My 
nerves would not have long stood the strain of it." He 
was not a convicted prisoner, he was not alone, his 
mission had been successful ; " and notwithstanding all 
this I suffered from a feeling of depression which deepened 
as time went on, and which in my case would ultimately 
have become unbearable." ' 

The foregoing account affords a striking illustration of 
the cell's terrible influence upon a prisoner of nervous 
temperament. And as modern pimishments have been 
mostly mental, they have always fallen heavily upon 
those who had a mind that could be worked upon. The 
combined effects of solitude, brutalizing laboiu, and 
general starvation of body and mind, have been set forth 
by one who had no small share in framing the English 
system. "To men of any intelligence," he wrote, "it 
is irritating and debasing to the mental faculties : to 
those already of a low type of intelligence it is too com- 
fortable a state of mind, out of which it is most desirable 
that they should be raised." ' 

It is sometimes put forward that prisoners are a people 
apart, with neither nerves nor feelings ; and that, conse- 
quently, no harm comes to them : a very comfortable 
arm-chair argument, by no means new in the long course 
of history. 

But in actual fact, almost every variety of human 
being may be found within a prison ; though, as the 
main-stream of criminality consists of offences against 
property, the grip of the law is not felt by the governing 
and respectable classes as it is among the struggling 
and inarticulate. 

Again, from the nature of things, prisoners always 
constitute but an extremely small minority in the midst 
of the whole healthy community : it has been reckoned 
that, in England, about i person in every 1,764 forfeits 
his or her liberty, while only i in every 10,000 persons 
is kept in penal servitude.' For these reasons, and 

' Nineteenth Century, March 1902. 

* The Punishment and Prevention of Crime, p. 175. 

• Report by the Chairman of the Commissioners of Prisons, 1899. 
Appendix A, p. 26. 



230 A HISTORY OF PENAL METHODS 

because the prisoners have been potentially a voiceless, 
voteless multitude, they have all along been grievously 
misjudged and wronged. Small minorities haVe seldom 
had fair treatment in a democratic land, and the weak 
and ill-equipped are nearly always abused everywhere ; 
hence huge neglect and the hiding away of difficulties, 
ignorance almost beyond redemption by a doubt, and 
all its consequences. 

The long-sentence man of popular imagination still 
remains represented by Bill Sikes ; and people picture 
the wife-beating and garrotting sort of ruffian. But 
though of course the lowest types are to be found in 
penal servitude, I should like to point out that the long 
sentences are seldom passed upon the sort of man whose 
cruelty makes home a hell, and women and children 
tremble at his savagery. Unless he throws a lighted 
lamp or commits some special act of violence which ends 
in the actual death of the victim, and brings him to his 
right place, which in many such cases really seems to me 
to be the gallows, he is let off with terms which are 
expressed in weeks, if not indeed with fines. Speaking 
generally, the long " stretches " appear to be reserved for 
(i) the more or less medical cases involving ungovernable 
assaults of various kinds ; (2) the continued repetition of 
offences often not very heinous taken by themselves, 
but which incur accumulating consequences ; (3) serious 
offences against property, for which there is less excuse, 
since they are often deliberate, and will occasion wide- 
spread misery and dislocation — but which are seldom 
committed by people of low mental type, and often require 
no small amount of perverse ingenuity to carry through. 

Amongst all those contained in the great body of 
people confined in local prisons, have been, and are, a 
number of nervous, emotional, often well-meaning, but 
unbalanced prisoners, upon whom the cell and the dis- 
cipline soon told with murderous effect.' The rate of 
insanity was terribly high, and in the midst of conflict- 
ing and misleading estimates '' and much " explained," 
euphemized facts,' we can at least assume that either 

1 See Evidence before the Departmental Committee of 1895. 

2 Insanity in Prison, by Bernard Molloy, M.P. London, Reeves. 
' Rev. W. D. Morrison, in Fortnightly Review. 



MONOTONY 231 

a great number of prisoners were previously mad, and 
therefore not proper subjects for punishmeiit of any sort, 
or else that they went mad within the gaols. 

Much the same may be said of the extraordinary pre- 
cautions that were taken against suicide. For though I 
do not think that self-destruction is, per se, any evidence 
of insanity in certain circumstances,^ yet its extensive 
prevalence argues either mental derangement or a terrible 
distress of mind. 

While the number of actual suicides has all along been 
inconsiderable, the attempts at self-destruction — which 
in the bad old days were always classed as " feigned" 
when unsuccessful, and often as "unintentional" even 
where death ensued — were very much more numerous. 
The suicide rate is said to have fallen somewhat towards 
the latter days of the old regime, but the insanity rate 
flew up meanwhile, and the decrease has been attributed • 
to nothing else than more elaborate precautions having 
been taken on the part of the authorities. 

Prisoners have always been continually searched and 
watched in every possible way to prevent them from 
secreting anything about their persons, which they would 
very often try to do ; and in 1895 wire netting was care- 
fully placed along the corridors of some fifty prisons, lest 
men should try to dash themselves upon the stones 
beneath. In fact, so minute were the precautions taken 
against suicide that the real wonder is that it could ever 
be successfully accomplished. 

In this world we shall never know how many perished 
by the prison system in all that guilt-stained nineteenth 
century. Deaths were so easily tabulated ; madness 
could always be accounted for. Far from being set down 
to the system, it was mostly classed among the ordinary 
sequelae of earlier criminal tendencies. In 1894 no single 
case of insanity was attributed to imprisonment — by 
the selected surgeons.' Even certain physical excesses 
occasioned largely by the solitary cell, and tenfold 
aggravated in their consequences by semi-starvation, 
were held up by a governor who must now be dead, in 

> See, for instance. Dr. Strahan's thoughtful work on this subject. 

2 See Evidencelbefore the D. C. 1895, p. 104. 

3 Report, 1894, P- 89- 



232 A HISTORY OF PENAL METHODS 

his shocking evidence before the Commission of 1878, not 
as showing the monstrous and maddening conditions 
then prevailing in the prisons, but as indicating individual 
vice.' 

In 1896 the country, which had been disturbed by the 
exposures in the Daily Chronicle some two years before, was 
startled and amazed at the condition of the Irish " politi- 
cals " who were about that time released from prison.' 
Their liberation was stated on the highest authority to 
have been absolutely necessary on medical groimds ; and 
some of them came out in that crushed and pitiable 
condition in which so many prisoners have been returned 
to freedom. One, I believe, has permanently lost his 
reason, and is still confined in an American asylum. But 
the most remarkable feature in the case is the fact that 
they were released after all ! " . . . What is the natural 
inference ? " wrote the Westminster Gazette : " why, that 
their case is typical of the whole prison system, and that 
there are probably hundreds of men convicted for other 
crimes in the same condition. ..." 

" I may tell you," said an inspector of prisons, now 
(1902) holding a Very high appointment, " that there is 
nothing so unequal as the punishment of imprisonment, 
and nothing can be so unequal. . . . An educated 
gentleman commits an offence against the law. . . . The 
treatment which that man receives, and which the law 
lays down shall be the same for all convicted prisoners, 
is to him a million times more ptmishment than it is to 
an habitual criminal. ... It is too dreadful to contem- 
plate." And then, official-like, he added, " But I fail to 
see how you can alter it." • 

Colonel Baker of the Salvation Army, when examined 
before the Committee which sat in 1894, said in his 
evidence : " As to convicts on discharge, I should like to 
say that we find a great number of them incapable of 
pursuing any ordinary occupation. They are mentally 
weak and wasted, requiring careftd treatment for months 
after they have been received by us. In several cases 
they are men who are only fit to be sent off home or to a 
hospital." ' 

» R. C. 1879, p. 178. ' September 1896. 

3 D. C. 1895, P- 222. * D. C. 1895, Ev. p. 279. 



MONOTONY 288 

Mr, Thomas Hoimos, in that grand "human" book, 
which feels like th(> saving grip from the hand of a strong 
man, says of a certain newly-retmiu'd convict : " His 
eyes betrayed him, his high cheek-bones and hollow 
cheeks betrayed him . . , but most of all his voice be- 
trayed him, I i ow he talked 1 There was no stopping, he 
ran on and on; and tlioiigli I wanted to tell him much, 
I had to sit and listen to his queer voice as the words 
canio tumbling over each otluu . . . . But he begged to 
be allowed to lu-ar his own voici' once more— he had had 
no one to talk to for a period of y(>ars." ' 

Hut tlie etlects of the cell upon the nervous and the 
young was not by any means confined to convict prisons. 

in t8c)5 a lad named C, il. F., uf^ed eigliti'cn, was 
sent to serve two months in Wandsworth Haul. He was 
reported twice, and itunishetl on seven occasions, for 
prison ol'lenecs. And lie never got through those two 
months, for having a wounded liand he unwound the 
bandage and lianged hin\sell to the detestable crank, 
which was stilt in nse at that time, anil was lixed inside 
liis cell, A pathetic c;i.se ot the same sort occuiTed in 
1898. On Seiitember .S,» ('. K., an emotional ncrVons lad 
of only s(>Venteen and (icul help such within a modern 
prison ! -was sentenceil to twelve months' hard labour. 
Taken (o Worniwoiul Scrubs, ho became (.lei)ressed and 
cried for his mothi'i.' Two days after admission he was 
found in his ceil a.gain crying, bleeding from a wound in 
his head, supposed to have been causeil by his having 
knocked himself against the w;i.ll. lie was then taken 
to the inlirmaiy ami placed by liimself in an obsei'Vation 
cell. WJien a warder ilid look in, the boy was found in a 
half silting posture, hanging by a large luunlkerchief at 
th(! foot of his bed, and one more broken sjiirit had been 
released by that great warrant which respects no rule. 
This case exempliiies the worst siile of our isrisons as 
they stood befort> the operation of the Asipiith-Ridley 

' l'iitiiii<s iiiitl I'lohlf'in^ /ii'iii l.oiiiloii I'.'liii' Courts, ch. ix. 

■\ morVJid, HliUoiiing Mort ni iiuliilcinu-c distciwi'cis tl>i' long-pun- 
ished oonvicl. I'IuuikIi llliiM-attMl at last, lli<- objiHts ronnil lilm have 
ItiHl, llifli- luit)— Ul'i' llsrll in witlunil rclinli. -Pf. Jmiu'S KosH, /■ami.!' oil 
I'ri.soii /i('\((/'/i'/if, p. r-j, 

• Spp /i,i(7i' l,'hf,'i,if'h. (VI, t, iSoS. 

' Mr, !>nvill'» Irltoi- In /'.ii/v Chroiikh. 



234 A HISTORY OF PENAL METHODS 

Bill of 1898, and too much of which -remains even 
to-day. 

A hand on that boy's shoulder would have saved him. 
One touch of nature, the pity and solace of any other 
human spirit of man or woman, would perhaps have re- 
stored him afterwards to his mother, reformed and chast- 
ened. But they gave him only the bare walls and the 
blurred windows, and barred out all the earth and the 
expanse of heaven, till He who moveth beneath all founda- 
tions stood near and set him free. 

I do not like to think of such a scene ; there are some 
things which so astound our judgment that we can only 
feel that they must rest with God, and leave all there 

These are but isolated cases that I happen to have 
come across in connection with a good many years' work 
on prison subjects ; they are but typical of the greater 
mass of misery, living and dead, which prisons have occa- 
sioned. Major White, who was one of the Raid prisoners, 
wrote after his release : " It is no exaggeration to say 
that very few nights were spent in prison without our 
hearing the sobbing of children who were passing many 
hours in the gloom and confinement of the prison cell." ' 

We do not realize the misery of Nothingness until we 
go apart and think, or suffer it ourselves. The day 
which breaks out of the east upon the million-moving 
world is all so full ; we do not recognise how many 
subtle sounds are merged and blended to make up 
our so-called silences. A " Lady Deadlock " dreads the 
demon of boredom ; I remember in a recent play 
" Mrs. Daventry " spoke of the days coming up as enemies 
to be lived down somehow ; yet only prisoners know 
real monotony. 

How we all try to kill time, even in the Very midst of 
life and social happiness ! I have seen men reading while 
having their hair cut ; taking bundles of papers for a 
journey measured by hours in the midst of passing scenery. 
I have been on the great ocean for days and days out of 
sight of shore and shipping ; and we were all very glad to 
touch a port again, though games and a hundred other 

' Hon. Robert White, Nineteenth Century, August 1897. 
On this subject see also Daily Chronicle and Westminster Gazette, 
May 28, 1897. 



MONOTONY 235 

pleasant things, besides unlimited companionship, filled 
up the spaces between land and land. 

Nature is mostly kinder than we know, and many lives 
that now appear so hard have many mitigations ; often 
quite tinperceived and unappreciated till they are re- 
moved. There are few spots upon the great round globe 
that are not sometimes sanctified by tears of human 
S5mipathy. I have seen people in the wards of hospitals 
made bright and happy in the midst of pain, drawn to- 
gether by their common need. 

And in the times of heavy stress and storm, most men 
possess (but yet, alas, not all, for some seem so self-centred 
as to have no souls, and move upright but spiritually 
dead) the safe and precious harbours of their homes, as 
refuges against the rough winds of the world, and feel 
a few will always stand fast friends. 

But unto those who dwell apart within the walls — the 
most distressed — comes neither break nor balm. Each 
memory bears its own load of sorrow, even as the west 
wind weeps in rain ; and home, the refuge of the wan- 
derer, becomes perhaps the saddest thought of all. The 
heart withers in sombre silence, the brain broods in dull 
despair ; even the eyes can find no sight of rest, but 
only rectilineal angles of the hard, forbidding buildings, 
high walls of yellow brick (as though the Very clay were 
driven to jaundice from its horrible employment), or 
lines of grim and frowning granite. And so the long years 
break, like waves upon the rough unyielding rocks, and 
the prison gate appears never to open, so long as the living 
tomb retains its own ! 

And then, maybe, after a generation, steals forth a 
shadow that was once a man ; to find that while he stood 
in decaying stillness the world had somehow moved and 
slipped beyond him. Parents are dead, and friends 
scattered and gone ; landmarks have shifted ; he has 
now no place. It is Peter Kraus, it is Rip van Winkle 
in actual life. And the forlorn creature creeps like an 
unshriven soul, avoided and homeless. 

For him rest, pardon, and salvation can be attained 
only beyond the grave. 



CHAPTER XV 

THE CONVENTIONAL VIEW 

To vilify and distort the image of the thing we fear or 
hate has been an ancient and most precious prejudice 
extending through all times and populations. Thus, to 
our forefathers in the Middle Ages, the " Devil " was 
represented to be black or red in colour, while among 
savage races " he " is just as frequently conceived as 
being white; in either case, sufficiently human to be 
popularly execrated, and sufficiently apart and monstrous 
to make acute appeal to the imagination. The fallacies of 
the ages have clung close around that great and apotheo- 
sized offender — for instance that most mischievous idea 
of the innate attractiveness of evil, and " his " perverse 
delight in its pursuit. 

Built on the model of the deity of Darkness, we find the 
villain of the novels and plays, in which either the authors 
have not followed human nature's strange and many- 
motived workings,' or, as is much more probable, they 
have exaggerated for effect and contrast. Thus the 
conventional villain is of course utterly bad, loves sin 
for sweet sin's sake with fine disinterestedness, and is 
consigned to utter damnation, to the intense and very 
natural satisfaction of the indignant audience, and the 
great credit of the play or story. 

Next to what we may call the petty devil of the melo- 
drama stands out the " Criminal" of popular imagination, 
who is largely the creation of people who generalised 
without knowledge and imagined without thought ; and 
he is almost as much a scarecrow of the fancy as was 

1 " The good are not so good as they think themselves ; the wicked 
are not so bad as the good think them." — Mandell Creighton, Bishop 
of London. 

236 



THE CONVENTIONAL VIEW 237 

that other most unpleasant individual the " Economic 
Man." This quite imaginary sort of person, one who 
should or would go about always contriving crimes and 
villanies, if he were not " deterred" therefrom by the 
terrific penalties that were attached to them, all the grim 
working of which was to be kept before him by their 
infliction on detected people. And every crimson tragedy 
the Law set forth, and every consignment of its captives, 
though to a doom far worse than death itself, was always 
justified upon its day of doing, by one well-worn, all- 
extenuating plea : that though such sights were sad yet 
they were salutary, because " the criminal " was then 
looking on, and he would slink away and be deterred.' 

Doubtless, at first sight, it would appear as though he 
ought to be : prisons had been made hard as they could 
be made, our forefathers had no wish but to make them 
so, and had gone in for everything — the lash,, thick chains, 
and solitude, worst of all ; and they had killed, maddened 
and broken down bodies and minds with the weight of 
torments. But they had never prevented the repetition 
of crimes ; they had not deterred ; even to Port Arthur 
and to Norfolk Island, many prisoners were sent back 
after fresh convictions.' 

How came this ? Why was the criminal moth, although 
maimed and singed, continually drawn back to the penal 
candle, often to perish miserably against the flame ? 
Because he was drawn back by the force of circumstances ; 
because in most of the cases his will was weak and the 
force was strong, and he could not help it. No one will 
deny that the punishments decreed, and possibly await- 
ing, were dreaded beyond expression, but they had 
(evidently) been established on crude false theories by 

1 The statute 8 Eliz. c. iv. sets forth that while the crowds stood 
watching the executions, the pickpockets were busy at robbing people 
under the very gallows-posts ; and it proceeded to deprive them of all 
benefit of clergy. 

2 Notwithstanding the severity of the punishment at the penal 
settlements, offenders are not infrequently sent a second time to Nor- 
folk Island or Port Arthur.— Fiifs Report of 1838, p. xxii. Prisoners 
were frequently recommitted to Port Arthur in spite of its being 
" constantly exhibited as a place of profound misery ; it carried the 
vengeance of the law to the utmost limits of human endurance." — John 
West. Hist. Tas., ii. 344. 

Et vide C. H. Hopwood, A Plea for Mercy to Offenders. London, 1894-. 
" Appellant," Crimes and Punishments, Romilly Society. 



238 A HISTORY OF PENAL METHODS 

men who did not know (or care) about human nature, 
and so, when dealing with living people, they did not 
work. And what of " The Criminal," the real man (or 
woman), with all his most complex ties and tendencies ; 
the living victim of deterrence fallacies ? Why, he 
gambled in chances, trusted to luck, to charms, to pieces 
of coal, horseshoes, or even relics ; through which he 
hoped to escape detection (and then there would, of 
course, be no unpleasant penalties to consider), and seldom 
bothered much about consequences (they were too dread- 
ful possibilities to reflect upon ; they were the anticipa- 
tions of suffering, they were the thoughts to drown in a 
good long drink !), or all the frightful penalties the State 
might inflict on him ; until he felt the handcuffs on his 
wrists, or lay awake remanded in his prison cell ; then 
it was too late. 

So much for our survey of the theoretical (and if we are 
right, of the actual) position. It will also be found that 
the importance of punishment is far more insisted upon by 
those who have never looked into the matter seriously 
(or any other : I remember hearing some blood-thirsty 
sentiments from a newly-married woman at a big dinner 
party as she sat toying with her recent rings) than by 
those persons who have dealt with facts. ' ' The criminal, ' ' 
says the Select Committee in its Report of 1838 (p. xxxiii), 
" only dreads punishment and is acted upon by it, when 
he sees the lash at hand and suspended over his head ; 
and prospective punishment has no effect in deterring 
from the immediate gratification of his desires when 
exposed to temptation." ' 

Even the " Panic " Commission of the year 1863 
stated in its Report, p. 23, that " The number of crimes 
committed ... is probably less affected by the system of 
punishment which may be in use than by various other 
circumstances, such as the greater or lesser welfare of 
the population," and the demand for work, etc., etc.* 

When Major Arthur Griffiths, for many years a Governor 
and afterwards an Inspector of prisons, was examined 

1 De non apparentibus et non existentibus eadem est ratio. " A 
convict will sell for a pint of spirits the necessaries which should serve 
him for months." — Evidence: Historical Records of N.S.W., vol. i. 
part ii. p. 556. 

' See also Rylands, Crime. Appendix II. 



THE CONVENTIONAL VIEW 239 

before the Commission which sat in 1878-9, his verdict 
was that " Anything like punishment does not, as a rule, 
prevent their (the prisoners') committing themselves again 
when they go out" (Evidence, p. 271). Asked upon 
what ground he based a punishment at all, he replied, 
" Simply to keep them out of harm's way and to prevent 
them as long as possible from committing depredations 
upon the public." " But," expostulated Lord Kimberley, 
who was in the chair, " we must have some general 
principle upon which to base our system of punishment." 
And so they still adhered to the old rough, ready, erroneous 
one, and Parliament has continued to muddle along upon 
its false and cruel premises.^ 

Let us now tiurn to the evidence given before a very 
different sort of Committee, which was appointed by Mr. 
Asquith when he was Home Secretary in the year 1894. 
Major Knox, then Governor of Leeds Prison, gave his 
opinion, saying, " I do not think that a man who is going 
to commit a theft or a burglary looks to the sentence a 
bit." ' (If this be so in the case of such deliberate crimes, 
how far will any sentence be kept in mind in the case of 
impulsive acts ?) Captain H. K. Wilson (an Inspector 
of Prisons), also examined, was asked by Mr. Herbert 
Gladstone : "In fact, then, do you think any sentence 
is more or less useless except for the purpose of keeping 
him [the criminal] away from doing harm ? " To which 
the reply was : " You keep him away — that is all." ' 

Lastly, Mr. H. M. Boies, a man of many years' experience 
as a prison officer in America, sums up the results of what 
he has seen, in the affirmation that Scientific Penology 
proclaims it as a law " that the fear of punishment does 
not restrain crime." * 

This, then, is the verdict of all these representative 
prison officials, whose sympathies would certainly have 
been in favour of ascribing the best results to the huge 
institutions over which they presided. They had yet 



• Whiteway, Penal Science, p. 48. 

i* Departmental Committee of 1895, Evidence, p. 265. 
' Ibid. Evidence, p. 332. 

* The Science of Penology, p. 77. New York, Putnams, 1901. _ 
" il est connu que la peur de la punition n a jamais arrfite 

un seui assassin."— P. Kropotkin, ParoUs d'un Rivolti, p. 243. 



240 A HISTORY OF PENAL METHODS 

to admit, with Holtzendorff, that, in so far as deterrence 
went, the prison systems had indeed made shipwreck. 

Belief in " luck " and " chance," in fact, the gambling 
spirit generally, is very strong and deep in human nature. 
Vainly will Andrew Carnegie affirm that, according to 
all the teachings of experience, the gamester who counts 
on Fortune shall perish poor (for the Jay Goulds of the 
world have been men of great, if misdirected, mental 
power who knew their game). Thousands of fools who 
could not pass in ordinary mathematics will invent 
" systems " which shall break the bank, and all the 
while the tables make their vast and steady profits for 
the various casinos, year after year. Also, to any one 
who watches current events, it is clear that the multitude 
is largely composed of weak, uneducated, foolish people. 
The newspapers are filled with advertisements proclaiming 
" competitions," percentages, and all sorts of bargains 
which every business man knows must be fraudulent or 
impossible. But the best bait to capture human gulls 
with, is to pretendto give them some unheard-of advantage 
and to appear to be making a sacrifice ; and these wild 
statements must bring in clients or they would not be 
paid for. 

The fortune tellers, living and automatic, do a brisk 
trade, and there are also pernicious pseudo-medical quacks 
who make a monstrous living out of the shame and 
ignorance of their victims, who fear to consult a qualified 
practitioner. How many scatter-brained citizens 'are 
really about, may well be sampled from the post office 
returns. In 1900 there were no less than 2,767 letters 
containing valuables posted without any address. From 
these undelivered epistles the authorities took £136 in 
notes and money, and as much a's £9,628 in other securities. 
And yet the State, having these thousands of haphazard 
people to deal with (and surely the criminals will be likely 
to be among the most unbalanced of all), pays them the 
somewhat cruel compliment of assuming in them the 
power of sober forethought, and of estimating more or 
less problematical consequences and pains. 

So judges and magistrates, with serious faces, mete out 
so many months for this offence, so many lashes for that, 
and so many years' penal servitude for the other, as if 



THE CONVENTIONAL VIEW 241 

offences and punishments were really commensurable,' 
and almost as if prospective offenders might ponder the 
penalties or look them up like stations piinted in the 
A.B.C. 

Now in reality the Law can never excite more than a 
vague, fog-looming, distant terror in the average mind. 
The dull dark wall of prison may lie ahead — a submerged 
rock before the drifting, rudderless ship on its tragic 
course. Something sharp and ruinous, expressed in 
months ; something long-drawn and dreadful, expressed, 
but yet unrealized, in terms of years, may be in store. 
The actual or prospective offender will seldom be able to 
appreciate more than that, if he thinks thus far. And 
neither he nor any one else can tell what sentence will be 
dealt out for a given offence ; it will depend entirely on 
the judge, perhaps on how his lordship feels that day ; 
in fact nobody knows. Somewhere near, you may say ? 
Not at all : if sentences were blindly drawn out of a 
bag full of numbered tickets, there would not be much 
greater uncertainty, and perhaps often not much greater 
injustice.' 

The inequality of sentences has furnished innumerable 
columnsof adverse press-criticism — often, I fear, prompted 
merely by political motives — and I shall only select a 
few instances out of my case books, in which, for a good 
many years, I have been sorting and collecting evidence. 
About 1886 one George O., a boy of sixteen (or just 
seventeen), was convicted of the very serious offence of 
tr5mig to obtain money by menaces, and he was sent 
away to penal servitude for life. I cannot conceive a 
crime which will be more universally condemned, but he 
was so very young ; think of it — an infant in the eye of 
the Law, and a schoolboy still under his mother's care 
in the sight of common sense, getting the doom which 
one does not like to read of as being passed upon adult 
and desperate criminals. There was some hostile comment 
at the time, but such " small " matters are soon forgotten, 
the fatal door had quietly closed, and there was no 
appeal, except for matters of money, then. 

> Cf. Edward Carpenter, Prisons, p. 12. 

2 For the varying penalties prescribed by the laws of different 
American States for similar offences see Grif&th J. Griffith, Crime and 
Criminals. Los Angeles. 1910. 

16 



242 A HISTORY OF PENAL METHODS 

Some ten years later a similar case occurred. The 
prisoner was about the same age, his crime was a still 
bolder variety of the same offence, and had he been more 
moderate in his terms, the blackmailed person would, as 
the evidence showed, undoubtedly have paid up, and 
kept discreet silence, as welLplaced people generally do 
in these sort of circumstances. But it fell out that young 
J. D. was prosecuted and convicted, and he got twenty — 
years you might anticipate, after the earlier sentence 
passed by that judge, who was sometimes alluded to as the 
" EngUsh Torquemada " — ^no, twenty months, on account 
of his youth, and the newspapers the next morning called 
that a tough sentence. Two other notorious trials occur 
to me as I write, though I can only relate these from 
memory. In the West of England, a good many years 
ago, a certain man was taken by two others to be a 
poacher — which he was not — and was forthwith pursued 
and quite illegally chased by them on the Queen's highway. 
Being apparently a very nervous individual, in a great state 
of alarm, and having a revolver upon him, he suddenly 
turned and shot the two men who were overtaking him. 
Although this was admittedly done in his own defence 
under the influence of an access of terror, he yet received 
a twenty years' sentence for manslaughter. A great 
outcry was raised at the time, and numerous petitions 
were signed by all sorts of people, including my father ; 
and the sentence was afterwards altered to one of eight 
months' imprisonment. 

The other trial which I remember was for a murder upon 
the high seas. Their ship having gone down far away 
from land, part of the crew went off in an open boat, and 
were afterwards reduced to the last extremity for want 
of food and drinking-water. Omitting to cast lots for 
the needed victim, they slew a lad who was nearly dead 
from exhaustion, and (as has been described from life 
in Captain Marryat's stories) they proceeded to drink 
his blood.' The half-eaten body was found in the boat 
when the survivors were ultimately rescued and brought 
to land by a passing vessel. They were then tried 

' Such terrible tragedies are well known, and are always liable to 
occur ; see for another instance J. H. Lefroy, History of the Bermudas, 
p. 65. 



THE CONVENTIONAL VIEW 243 

for the (legal) murder, though popular sympathy was 
largely extended to them on account of their having 
been actuated by such unendurable sufferings, and 
although formally convicted, it was expected that 
they would be immediately pardoned. However, as 
they had not drawn lots, the then Home Secretary only 
commuted the sentence to one of six months' imprison- 
ment. 

Another trial was cited by the late Lord Russell of 
Killowen as an example in severity, which I have in a 
case book. A woman had been convicted before the 
late Mr. Justice Manisty on a charge of stealing some 
blankets, and was sentenced by him to no less than twenty 
years' penal servitude ; the judge afterwards found that 
he had exceeded the legal maximum, and was compelled 
to reduce the sentence to fourteen years, although he 
expressed regret at having to take that course.' So far 
as one is in a position to determine, I believe that there 
were {iemp. Ed. VII.) only two living judges who would 
have given the unfortunate woman as much as half that 
number of years for what she had done. So are lives 
and liberties tossed about in the machinery of the courts 
of justice. 

Sentences, then, cannot be estimated beforehand, and 
are very often cruel and capricious in character. But 
this is not sufficient to explain why the hard facts of 
experience have all along confuted the old theories as to 
the possibility of deterring by punishment. For even 
if penalties could be made fixed and invariable for 
each proved offence, all circumstances being henceforth 
ignored, and if every schoolboy were taught to know 
what would be done to him for each kind of transgression, 
the current theory would still not stand, for it assumes the 
certainty of retribution. And every offender, in so far as 
he or she may be said to calculate at all, counts on not 
being caught. This fact it is which really nullifies the 
force and truth of the deterrence theory. If states could 
achieve the certainty of conviction, and could ensure 
the restitution of stolen property, I believe that all the 
crimes which can be deterred by anything {i.e. the 
deliberate, as distinct from the passionate) would be 
1 Daily Chronicle, March 21, 1900. 



244 A HISTORY OF PENAL METHODS 

quite met by, say six months' imprisonment, and most 
likely by some lesser penalty.' 

But as this certainty of conviction is absolutely im- 
possible to arrive at, we shall not deter by terrible threats 
and occasional victina-making ; ' and crime remains what 
it always was, " a statistical average ; a little less at times, 
a little more at others," as Hopwood said, depending upon 
all sorts of complicated causes, and disregarding the penal 
system almost as completely as accidents ignore the state 
of hospital accommodation. 

The average offender always thinks he will escape, 
not as a result of any hard or laborious reasoning, but 
principally because he hopes he will, and because he 
has a sort of general idea — if he is an habitual criminal, 
a very practical and soothing experience — that a great 
number of people do remain uncaught and at liberty. 
For while he may know that the ill-starred Brown is 
going through a long and dreary sentence, away out of 
sight and, consequently, largely out of mind, he may take 
comfort in the fact that Jones and Robinson, and any 
number he may think besides, did the same things and 
yet continue to be very much at large. And when we 
come to look into the question, we shall find that the 
criminal has much more solid reason for the hope which 
is in him than most of us would readily suppose. 

Murder, at any rate, is popularly imagined to be 
nearly always followed by most certain retribution.' 
But looking at the last available Report of the Metro- 
politan Police, we shall find that in the year igoo there 
were sixteen discovered murders in London.* For these 

1 " Wilful acts are the only ones that can be prevented by the feat 
of punishment." — Archbishop Whately, Thoughts on Secondary Punish- 
ment, p. 26. 

' The deterring power of punishment is undoubtedly subject to 
what is known in pohtical economy as the Law of Diminishing Return, 
which is found to apply to the producing capacity of the soil, the speed 
attainable in ships, and many other matters which we have not time 
or space to discuss here. 

' That able writer Mrs. Bradlaugh-Bonner worked out that a mur- 
derer has 9 chances to 1 that he will escape the death penalty, and 
(which is more important) 5 to I that he will escape punishment 
altogether. — Humane Review, July 1903, p. 133. 

* For instance, in that same year 1900, open verdicts were returned 
in 2,396 inquests, the juries not being able to determine the causes of 
death. See Judicial Statistics, England and Wales, p. 19. 



THE CONVENTIONAL VIEW 245 

only eight persons were actually convicted, although it is 
only reasonable to add, that five assailants executed 
themselves, doubtless from fear and horror at what they 
had done and what was in store for them. But in the 
other cases (and in how many more that were never 
heard of 1) no one was caught ; and figures for other years 
give somewhat similar results. 

Much more pronounced are the statistics with regard 
to housebreaking,' for which in London the returns gave 
1,416 cases and only 117 convictions, so that the ratio 
of crime to conviction stood about 12 to i. I do not say 
that the conviction-rate is as low as that for the majority 
of offences ; but adding together the principal detected 
crimes (and these alone do we know about) for that 
average year in London, we get 18,088 cases and 9,429 
convictions.* The proportion of prosecutions to known 
crimes in England was given at 77 per cent., ranging 
from below 50 to over 100.' 

But figures are frequently made to prove or disprove 
almost anything, and do not always count for much till 
we know the bearings ; * in this instance, we may accept 
the words of the official report that they do not afford 
any index to the number of unpunished crimes,' or to the 
efficiency of the police action. The late Mr. Whiteway, 
in his excellent work,' held that from one-half to two-thirds 
of our criminals evade punishment, while from judicial 
statistics made in the 'seventies,' Mr. Farrer placed the 
immunity for indictable offences at no less than 77 pet 
cent. 

Much the same state of things will prevail in other 
civilised countries • where social and economic conditions 
approximate to our own. " In the United States," says 

' Report of the Metropolitan Police for 1900, p. 62. 

» Ibid. p. 62. 

» Judicial Statistics, England and Wales, for 1900, p. 16. 

• The late Sir Wilfrid Lawson once gave an amusing illustration of 
this. It had been stated that at a certain station in India 50 per cent. 
of the teetotallers had died off. This was quite true in a way, but there 
happened to have been only two of them, and one of these two was 
picked up by a tiger. 

• Judicial Statistics, p. 18. 

• Recent Object-Lessons in Penal Science, pp. 47, 122. 
^ Crimes and Punishments, pp. 94, loo. 

W. M. Gallichan in Free Review, vol. v. p. 142. 

• See for instance ProfessorJFerri's Criminal Sociology. 



246 A HISTORY OF PENAL METHODS 

Dr. Hall, "comparatively few men are executed or 
imprisoned for the many murders committed/ but the 
average citizen, not called upon to investigate closely, 
does not realize this. ..." "The total number of 
convictions during 1899," ' says Mr. Boies, " was only 
I out of every 33-1 of the total arrests " ; and agam : 
scarcely i in 3 even of those arrested for serious crimes 
is convicted. We must bear in mind that all these figures 
relate to crimes which have been discovered. Many 
others, and an incalculable number of illegal acts, are 
never recorded, and find no column in the criminal 
tables of any country. 

Offences such as infanticide ' (and this I fear will very 
likely increase somewhat since incest was made a punish- 
able offence by an Act passed in 1908 : the true remedy 
for this particular evil would have been to improve the 
housing accommodation, but to make a new crime was 
much cheaper, much easier), illegal operations, * and frauds 
upon insurance companies, etc., are no doubt committed 
with no small impunity ; and as to offences against cmxent 
morality, in which there has been collusion and consent, 
the law becomes a veritable booby-trap merely to catch 
the foolish or unfortunate. 

It seems evident, then, that punishment, although not 
actually a negligible quantity as a deterrent to deliberate 
crimes, has yet been greatly overrated in value. I shall 
endeavour to prove that it is not by any means the 
thought-out product of modern science, but is in reality 
a survival from savagery. To establish this we must go 
back to history. 

* Crime in its relation to Social Progress, p. 19. Columbia University 
Press, 1902. 

2 The Science of Penology, pp. 75, 311. 

3 While engaged upon this chapter a case was reported in the press 
of a young woman who had been feeding her baby on ice cream, tinned 
salmon, and pickles. A great number of infants are overlain. 

• Whilst Dr. C. was on his trial with respect to the death of Mrs. , 

for which he received seven years' penal servitude, some correspond- 
ence came to light in which certain ladies declared that since the sudden 
removal of Dr. C. they had already " got another Man." 



CHAPTER XVI 
the instinct of retaliation 

Punishment of Things, Animals and Corpses 

Throughout the records of the human race— of man, 
the victim of ideahsm, of him, the most irrational animal — 
we are continually beset by the degrading spectacle of 
people mentally and physically prostrate before some 
shapen image which they have set up. Almost anything 
will do : a bloated reptile shall receive children torn from 
a mother's arms or hiarled by them in monstrous piety ; 
a stuffed figure, with which a farmer might scare away 
crows, and which a dealer in curiosities would hardly 
consider good enough to place in his window, may yet 
have human blood streaming before it, and be held up to 
dread and veneration. A time-worn tradition, a mere 
mythoplasm, some sanctified untruth ; such things have 
made whole communities miserable ; so low could sink 
the dormant minds of men. But why have such very 
mean and paltry objects ever received such worship all 
the world over ? Clearly this was not due to anything 
belonging to the carved and feathered idols themselves. 
No, but they stood for the religious instinct of their 
places and periods. The votaries of the idols gave them 
their power through their belief ; they had, as it were, 
charged these grotesque " batteries," and they received 
back the current they had imparted, even to shocks 
resulting sometimes in death ; though it was all subjective 
— in their own minds.' 

' Savages, says Sir Francis Galton, have been known to die at the 
very idea of having broken a Taboo. " The facts relating to taboo form 
a voluminous literature, the full effect of which cannot be covered by 
brief summaries. It shows how, in most parts of the world, acts whicli 
are apparently insignificant have been invested with an ideal import- 
ance, and how the doing of this or that has been followed by outlawry 

247 



248 A HISTORY OF PENAL METHODS 

Just as Idolatry derived its power from the Religious 
Instinct out of which it arose, so Punishment originated 
and grew out of the world-old instinct of Retaliation, 
and is instinctively retained for Vengeance' sake. 

" If there be one general law of life," says Guyau,' " it is 
the following : every animal (and we could extend the law 
even to vegetables) replies to an attack, by a defence 
which is itself often a repelling attack, a sort of answering 
shock : there is a primitive instinct which has its origin 
in a reflex movement, in the irritability of the living 
tissues, and without which life would be impossible : 
even animals deprived of their brains, do they not still 
endeavour to bite those who seize hold of them ? " 

" The reflex instinct of defence," says Letourneau, " is 
the biological root of the ideas of law and justice, since 
it is evidently the basis of the first of laws, the law of 
retaliation." ' 

" The human being, like the animal," says Professor 
Hamon, " when struck, instinctively gives back blow 
for blow . . . the animal wounded by a stone or arrow 
seeks vengeance of the stone or arrow. It considers it 
responsible for its wound." ' 

Now Instinct is old while Reason is recent. Reason 
may go back thousands of years ; Instinct has millions 
of years behind it. So pimishment, which is cold revenge, 
deferred or systematized, arising from instinct, is ancient 
and universal. And ever5rwhere we find it existing, 
and all the various and conflicting reasons • which may be 

or death, and how the mere terror of having unwittingly broken a 
taboo may suffice to kill the man who broke it." — Sociological Papers, 
vol. ii. p. 9. London, 1906. See also J. G. Frazer, Psyche's Task, 
p. 7. London, 1909. 

1 Quoted from the French by Dr. S. R. Steinmetz, in his Eihnolo- 
gische Studien zur ersten Entwickhmg der Strafe, p. 117. Leiden, 1894. 
J. M. Guyau has been translated into English by G. Kapteyn. London, 
1898. 

2 Evolution Juridique, p. 10. Paris, 1885. 

3 "The Illusion of Free Will," University Magazine , vol. xi^ London, 
1899. 

* I have alluded to some of the more complex ones that have been 
given, elsewhere ; but with respect to the more commonly accepted 
motives for punishing. Lord Justice Cherry has well observed: " The 
notion of an offence against the State is of entirely modern growth, and 
the theory that punishment is imposed for the sake of reforming the 
criminal and deterring others from following his example is even still 
more modern." — Growth of Criminal Law in Ancient Communities, 
p. 3. London, 1890. 



THE INSTINCT OF RETALIATION 249 

assigned for it — when any are needed for a feeling so 
natural — are added on afterwards.' 

But punishment, besides its antiquity and universality, 
shows further and stronger traces of its instinctive origin 
in that we find it resorted to and applied in ways and 
circumstances which serve no rational or objective pur- 
pose ; in ways that could not, I should imagine, be 
defended as rational, by even the thickest-headed ad- 
vocates of deterrence ; in ways so manifestly childish 
and animistic that, I submit, we cannot account for them 
except as acts instinctive and concessory. 

Punishment of Things 

Xerxes had made a floating bridge over the Hellespont ; 
it was a narrow strait of sea, only about a mile in width, 
between Asia and Europe. But nevertheless a great 
storm shattered the work. " And when Xerxes heard of 
it he was deeply enraged and ordered that the Hellespont 
should be scourged with three hundred lashes and a pair 
of fetters thrown into it." ^ 

True, this was animistic : seas and rivers were then 
Personalities ; human qualities were imputed to them — 
the very words of the story indicate this. The scourgers 
were bidden by the fiurious king to address the strait in 

• " In point of fact, notlving that can with any tolerable propriety 
assume the name of policy, not sober reason, not so much as reflection, 
appears at any time to have been an efficient cause of the use so 
abundantly made of it " [the death penalty, but we can say punish- 
ment]; " vengeance, passion, began the practice; prejudice, tlie result 
of habit, has persevered in it." — Beniham to Lord Pelham, p. 5. 

" Penal law, like every other social phenomenon, is evolved according 
to the momentary exigencies of society ; the evolution of a* explaining 
theory always comes later and is dependent on the necessity of providing 
a satisfactory reason and a philosophic basis for that which was decided 
by tlie contingencies of the moment." — E. Lugaro, Modern Problems in 
Psychiatry {Orr & Rows's trans.), p. 281. Manchester, 1909. 

' ' A very common phenomenon, and one very famihar to the student 
of history, is this. The customs, beliefs or needs of a primitive time 
establish a rule or a formula. In the course of centuries the custom, 
belief or necessity disappears, but the rule remains. The reason which 
gave rise to the rule has been forgotten, and ingenious minds set them- 
selves to inquire how it is to be accounted for. Some ground of pohcy 
is thought of which seems to explain it and to reconcile it with the 
present state of things ; and then the rule adapts itself to the new 
reasons which have been found for it, and enters on a new career."— 
O. W. Holmes, Jun., The Common Law, p. 5. London, 1882. 

> Herodotus vii. 33, 34. 35- 



250 A HISTORY OF PENAL METHODS 

these words : "Oh bitter water,' thy lord inflicts this 
punishment upon thee because thou hast wronged him 
although in no wise ever harmed by him." And the 
King, even Xerxes, will cross thee whether thou wilt or 
no, but to thee doth no man justly do sacrifice, for thou 
art a deceitful river of salt water." 

But I think we may clai^n that this attempt at 
punishment was instinctive too.' The war-lord had been 
affronted and set at naught ; the notion of punishing was 
a relief to his feelings,' and though in those times it might 
have seemed reasonable to try and placate the seas and 
rivers with sacrifices, yet if the king had realized the 
futility of his orders, if he had seen his fetters swallowed 
up, and that the waves received his impotent strokes 
and moved no more than at the plashings of a shoal 
of young sardines, could any man deliberately have 
thought that he could do the waters injury ? 

Cyrus must have derived somewhat more satisfaction • 
from diverting the river Gyndes into 360 channels. This 
tributary of the Tigris had drowned one of his sacred 
and precious white horses ; and though rivers — like the 
great human passions — cannot be stopped, he had at 
least the consolation of making it fordable. 

The anger of the Sovereign, or State, often extended 
from the offender down to all his belongings.' So in the 
Decrees of Darius and of Nebuchadnezzar,' whosoever 
disobeyed was to be executed and was to have his home- 
stead made into a dunghill. 

Instincts are universal, although they may be mani- 
fested in many different forms ; and we are told of very 

' '0 viKphv SStiip, Seairimii toi Ukiiv ittmBti r^vSe, 6rt /uv ijSiKriras oiShi 
irpAs ixelvov AStKof iradiv. — -Herod, vii. 35. 

" If any should doubt the existence of instinctive punishment, I 
would cite the almost universal fact that messengers who have brought 
good news are rewarded accordingly, whilst bearers of evil tidings, al- 
though equally loyal, have scarcely dared to enter a prince's presence — 
for instance Henry I. was told of the White Ship's loss by a weeping 
child. " The Devil damn thee black, thou cream-faced loon," is a 
typical attitude. 

' Dr. Steinmetz has emphasised the immense importance of feeling 
in vengeance and punishment. See Entwichlung der Strafe, i. p. 361, 
etc., etc. 

* Herodotus i. 189, 190, 
' Ezra vi. 11. 

• Daniel ii. 5, iii. 29. 



THE INSTINCT OF RETALIATION 251 

similar decrees having been in force upon the continent of 
America in. pre-Spajiish times. Did a man seduce a 
Virgin of the Sun, then, " By the stern laws of the Incas 
she was to be buried alive, ^ her loVer was to be strangled, 
and the town or vUlage to which he belonged was to be 
razed to the groimd and sowed with stones." 

This form of instinctive vengeance at one time formed 
part of the law of England.'' If a layman had been 
convicted of a capital felony ' the king had the right, 
" in detestation of the crime," to " prostrate the houses, 
to extirpate the gardens, to eradicate his woods, and to 
plough up the meadows of the felon, for saving whereof 
and pro bono ■publico the Lords of whom the lands were 
holden " (by the convict) " were contented to yield the 
lands to the King for a year and a day." " And therefore 
not only the Waste was justly omitted out of this chapter 
of Magna Charta,* but thereby it is enacted that after 
the year and day the land shall be rendered to the Lord 
of the fee, after which no Waste can be done." ' 

The original custom had been for the King to devastate 
the habitations of felons in a truly savage and primitive 
fashion. " But this custom tending greatly to the pre- 
judice of the public, it was agreed in the reign of Henry 
the First in this kingdom, that the King should have 
the profit of the land for one year and a day in lieu of the 
destruction he was otherwise at liberty to commit." ' 

In later times the Crown used to claim Year-Day and 
Waste (17 Ed. II. c. 16), which many learned lawyers 
regarded as an encroachment on the royal prerogative. 
Blackstone, writing about the middle of the eighteenth 

1 W. H. Prescott, History of the Conquest of Peru, p. 53. London, 
1.878. 

2 J. Comyns, Digest of the Laws of England, vol. i. p. 378. London, 
1762. 

' Edward Coke, Second Part of the Institutes, cap. xxii. p. 38. Lon- 
don, 1669. 

* Vide 9 Hen. III. c. 22. " We will not hold the lands of them that 
be convict of Felony, but one year and one day, and then those Lands 
shall be delivered to the Lords of the fee." 

» Coke, Second Inst., ch. xxii. p. 37. " The property was regarded as 
in some way under the King's ban, perhaps because it was regarded, 
like the deodand, as tainted with guilt." — Holdsworth, Hist. iii. p. 63. 

« Blackstone's Commentaries, fifteenth Edition, bk. iv. p. 385. 

See also H. W. Challis, Law of Real Property, p. 30. London, 1885. 

Stephen, Hist. Critn. Law, i. p. 472. 

A. J. Horwood, Year-Booh of Edward I., 30-31. P- 538. 



252 A HISTORY OF PENAL METHODS 

century, says, " This year, day and waste are now usually 
compounded for ; but otherwise they regularly belong 
to the crown, and after their expiration the land would 
have naturally descended to the heir, did not its feudal 
quality intercept such descent and give it by way of 
escheat to the Lord." 

Houses which had domiciled heretics were frequently 
broken up by the Inquisition,' and the abodes of offenders 
were sometimes pulled down in New England by the 
Puritan colonists in the seventeenth century.* At home, 
criminals' trees were pulled up in cases of perjury.' In 
Russia, in 1591, after a tumult arising from the death of 
the Czarewitch, who had been found fatally stabbed at 
Uglich, " many of the inhabitants were sent to Siberia, 
which was now beginning to be a convict settlement, * and 
thither also was sent the great bell of the town." The 
" Exile of Uglich " is said to have been first flogged ' 
and deprived of its top ring, and remained in disgrace or 
neglect for three hundred years afterwards. 

About the year 1685 the church bell at La Rochelle 
was also treated in a grotesquely animistic manner. " It 
was," says a contemporary historian, " the subject of a 
very singular comedy. It was whipped, as though to 
punish it for having assisted Heretics. It was buried 
and disinterred to show that it ought to be reborn on 
passing into the service of Catholics. To complete the 
farce of this rebirth, there came a lady of quality who 
undertook the office of midwife, and another whom 
they bestowed as nurse upon this newly-born infant. 
They questioned it. They compelled it to speak. They 
made it promise that it would never again return to 
the conventicle. It made amende honorable. Finally, it 
was reconciled, baptised, and bestowed upon the church 
which bears the name of St. Bartholomew." ' Although 
the writer just quoted speaks of these strange proceedings 

1 Lea, Hist, of the Inquisition in the Middle Ages, i. p. 481. For an 
instance in Brussels see W. H. Prescott, History of Philip II., vol. ii. 
p. 225. London, 1855. 

- J. Winthrop, History of New England, p. 34. 

' Besant, Steuarts, p. 345. 

* W. R. MorfiU, Russia, p. 92. London, 1904. 

'' The Globe, May 20, 1902. 

" E. Benoit, Histoire de I'idii de Nantes. Tom. v. pp. 753, 754 
(a.d. 1695). 



THE INSTINCT OF RETALIATION 253 

in a surprised and evidently mocking vein, I fully imagine 
that the whole ritual was intended quite seriously at 
that time and place. Even in the twentieth century we 
still have the baptising of battleships, the blessing of the 
Neva, houses, etc. ; and also the reconsecration of churches 
where violent crimes or suicides have taken place within 
the walls or precincts of such edifices. 

In ancient Greece ' an object which killed a citizen was 
brought to trial at the Court of the Prytaneum, and if 
convicted,' cast beyond the borders. The introduction 
of this custom has been attributed to Draco, but Dr. 
Frazer observes that it was probably much older, " For 
such a custom based on the view that animals and things 
are endowed with a consciousness like that of man, goes 
back to the infancy of the human race." ' The actions, 
as I think we have seen, were originally instinctive. 

The same idea as to passing judgment upon things 
inanimate can be found nearer home, in the laws as to 
Deodands. Originally it appears to have been intended 
that whatsoever caused the death of a person should be 
delivered to the kinsmen of the deceased, as something 
they could be avenged upon.* 

The weapon,' or tool, or tree, might have been used 

* Demosthenes, Contra AHstocratem, xxiii. 76. 

' J. G. Frazer, Pausanias, vol. ii. p. 370. London, 1898. 

See also J. E. Harrison, The Bouphonia ; trial of the sacrificial 
axe or knife, which was condemned and thrown into the sea. Pro- 
legomena to the Study of Greek Religion, p. in. Cambridge, 1903. 

' Pausanias ii. 371, and compare Plato, Laws, Bk. ix. c. xii. 

* It was called the Bane, the slayer, and " In accordance with ancient 
ideas this bane, we take it, would have gone to the kinsmen of the 
slain ; the owner would have purchased his peace by the surrender of 
the noxal thing ... In the past, they would have received the bane, 
not in compensation for the loss that they had suffered, but rather 
as an object upon which vengeance might be wreaked." — Pollock & 
Maitland, H. E. L. ii. 474. 

" A consideration of the earliest instances will show, as might be 
expected, that vengeance, not compensation, and vengeance on the 
offending thing, was the original object." — Holmes, Common Law, p. 34. 
" In England the inanimate murderer was to be given up to the 
kinsmen of the slain surely not as a compensation for the loss they had 
suffered, but as an object upon which their vengeance was to be wreaked . 
... It did not matter that its owner was innocent ; the punishment 
was not intended for him." — Westermarck, Moral Ideas, i. 263. 

■• Among many savages, " if a man was killed by a fall from a tree, 
his relatives would take their revenge by cutting the tree down and 
scattering it in chips." — Tylor, Primitive Culture, i. 286, ed. of 1903 ; 
and see Holmes, C. L., p. 14. 



254 A HISTORY OF PENAL METHODS 

ever so innocently, and have belonged to some absent 
person or the deceased himself/ yet it had done the 
mischief somehow or other, and had become at once the 
accursed thing, to be forthwith condemned and forfeited. 

As the State gradually superseded the kindred in the 
taking of vengeance,', the King, instead of the relatives, 
took the deodand ; it was wont tp be sold, and the pro- 
ceeds were then administered by the Church for some 
pious purpose,' often for securing services to be held for 
the dead man's soul. The old savage custom, in fact, 
came to be freshly interpreted. The deodand object 
had to be an active agent of Death.* 

The age had outgrown the notion of taking vengeance 
upon a stone or tree that was stationary, but it was still 
sufficiently animistic to assume a kind of guilt and free 
will in unconscious things, and for a great lawyer, Coke, 
(1552-1634) to plead, in attempting to explain why a ship 
in salt water could not be deodand,' that " the ship or 
other vessel is subject to such dangers upon the raging 
waves in respect of the wind and tempest ; " implying 
that it was helpless and therefore exonerated. Stanford, 
J., also endeavoured to explain and justify the law as he 
found it, overlooking its origin, when he declared that, 
" If A killeth a man with the sword of B, the sword 
shall be forfeit to the King as a Deodand, because movet 
ad mortem and for default of safe keeping of the same 
by the owner."' Thus trying to make appear rational 
what had arisen instinctively. The law as to Deodands 
lingered on until the year 1846.' 

Punishment of Animals 

Since even inanimate things were once the objects of 
deliberate vengeance, much more would animals be 

' " Even therefore when, as was commonly the case, the bane was a 
thing which belonged to the dead man, none the less it was deodand." 
Pollock & Maitland, Hist. ii. 474. 

2 Holmes, Common Law, p. 24. 

3 Sometimes the Justices in Eyre directed how the money derived 
from the sale of the deodand was to be spent. — P. & M., Hist. ii. 473. 

* " Recte loquendo, res iirma sicut domus vel arbor radicata quando- 
que non dant causam nee occasionem," etc. — Bracton, f. 136, b. 

' Third Part of the Institutes, p. 58. London, 1680. 
Westermarck, Moral Ideas, i. p. 263, et seq. 

• Quoted in Coke's Third Inst., p. 58. 
' Westermarck, M. I. i. 262. 



THE INSTINCT OF RETALIATION 255 

certain to incur punishment.' By the Hebrew Law it 
was decreed that " If an ox gore a man or a woman that 
they die,' then the ox shall be surely stoned and his flesh 
shall not be eaten ; but the owner of the ox shall be 
quit." The animal having been ptmished, retribution 
was satisfied. The Laws of the Twelve Tables (b.c. 451) 
provided that if an animal had done damage,' either the 
animal was to be surrendered or the damage paid for. 

In Plato's Laws,* if an animal killed a man, it was to be 
prosecuted for murder, and if found guilty, put to death 
and thrown beyond the borders. The main idea in 
dealing with an offending animal in the early periods,' 
was that the creatiire (or slave) should be surrendered to 
the person who had been injured, or if he had been killed 
should be delivered over to the vengeance of the relations. 
By certain Teutonic laws, half the usual Wer-geld,' 
or man-fine, was to be paid for an injury done by any 
domestic animal, and, for the other half, the beast would 
be handed over. We find the same injunction in Alfred's 
Laws : " If a neat wound a man let the neat be delivered 
up or compensated for." ' And even as late as the six- 
teenth century. Sir Anthony Fitzherbert (1470-1538) 
could cite as a sound legal proposition the statement that 
" If my dog kills your sheep, and 1 immediately thereupon 
offer you the dog, you are without further claim against 
me." » 

The primitive custom of the noxal surrender • of homi- 

» "The animal had to suffer on account of the indignation it aroused." 
Westermarck, Moral Ideas, i. p. 257. 

• Exodus xxi. 28. ' Holmes, C. L., p. 8. 

• Laws, ix. 12. " Holmes, C. L., pp. 17, 18. 
" W. E. Wilda, Strafrecht der Germanen, p. 589. Halle, 1842. 
Holmes, C. L., p. 17. 

' Laws of Alfred, 24. See Thorpe, fol. ed. p. 35. 

• La Grande Abridgement: " Barre ; " fol. 126. Sec. 290, Ed. of 
1577. Noxal Surrender prevailed in Flanders up to the sixteenth 
century at least. 

E. Jenks, Law Quarterly Review, vol. xix. p. 24 (January 1903)- 
» The fact that afterwards, in the later Middle Ages, this form of 
reprisal (i.e. giving up the wrong-doer to private avengers) " was m 
certain instances transformed into regular punishment, only implies 
that the principle according to which punishment succeeded vengeance 
in the case of human crime was, by way of analogy, extended to m- 
iuries committed by animals." — Westermarck, Moral Ideas, 1. p. 256. 
See also Hamon, " Illusion of Free Will," University Magazine, vol. xx 
London, 1899. — F. Puglia, Evoluzione storica del Diritto, Messina, 1882. 



256 A HISTORY OF PENAL METHODS 

cides, etc., human and animal, was generally succeeded 
by legal vengeance carried out by the Courts, and, in a 
great number of instances, this was taken on animals. 
" On the continent of Europe down to a comparatively 
late period, the lower animals were in all respects con- 
sidered amenable to the laws. Domestic animals were 
tried in the common criminal courts, and their punish- 
ment on conviction was death ; wild animals fell under 
the jurisdiction of the Ecclesiastical Courts, and their 
punishment was banishment and death by exorcism and 
excommunication. . . In every instance advocates were 
assigned to defend the animals, and the whole proceedings, 
trial, sentence, and execution, were conducted with all 
the strictest formalities of justice." ' 

They were,'' from about the eleventh up to the eigh- 
teenth century,' placed in the penal mill just like human 
beings, and ground to pieces in its pitiless machinery.' 

Understanding,* responsibility, malice prepense, and 
guilt, were fully imputed to the unreasoning creatures ; 
even speech on their part was not thought inconceivable, 
when they were brought into court as being the 
only available witnesses ; ' their silence was construed 

1 Frazer, Pausanias, p. 371. 

' Menabrea, Soc. Roy. de Savoie, xii. p. 401. 

2 The accused animals were kept in the ordinary prisons for human 
criminals. — E. P. Evans, Punishment of Animals, p. 142. 

* Shakespeare, " who knew everything," alludes to the practice of 
punishing animals: see Merchant of Venice, Act. IV. Sc. i. 

"Thy currish spirit 
Govern'd a wolf, who, hanged for human slaughter. 
Even from the gallows did its fell soul fleet, 
And whilst thou lay'st in thy unhallowed dam 
Infused itself in thee ; for thy desires. 
Are wolfish, bloody, starved, and ravenous." 

It is interesting to notice that a law of the Twelve Tables allowed 
a debtor, where there were several creditors, to be cut up in pieces 
and distributed amongst them (vide O. W. Holmes, Common Law, 14). 
If there were but a single creditor he might put the debtor to death or 
sell him as a slave. So that old Shylock's claim may not have been so 
whimsical as it would appear, though possibly out of date. 

' " Das Thier wurde demnach als verbrecher ausgesehen. Es 
wurde ihm ein verbrecherischer Wille zugeschrieben." — Karl von 
Amira, Thierstrafen , p. 9, Innsbruck, 1891. See also Arthur Mangin, 
L'Homme et la Bite, p. 340. Paris, 1872. 

• This idea presumably arose out of the then-believed legend of 
Balaam's ass ; at the same time, a demonstration on the part of, say, 
an intelligent house dog might afiord valuable evidence. 



THE INSTINCT OF RETALIATION 257 

as being to some extent favourable to the person 
suspected.^ 

Accused animals are said to have been put to the 
torture ' — doubtless on the principle of going through all 
the scenes of the usual criminal drama ' — and their moans 
were then taken to be admissions of guilt. The ordinary 
penalty for any animal convicted was death ; often they 
would be strung up by their hind legs.* 

Occasionally they would receive a " poetic " ptmish- 
ment," like the sow at Falaise, which, in the year 1386, 
was convicted of having bitten the face and leg of a child. 
She was dressed up in human clothing, and mutilated 
in the head and hind leg, before being hanged before the 
crowd in the market place. Amira alludes to an instance 
of a sentence of temporary imprisonment passed on a 
dog,' and strangely enough, I read in a modern newspaper ' 
of a monkey having been given three months' soUtary 
confinement in an animals' hospital to render it docile ; 
but this case had nothing to do with the criminal courts. 

As might have been expected from what we found, 
animals were frequently involved in accusations of 
witchcraft and sorcery.' A typical example comes down 

' R. Chambers, Book of Days, vol. i. p. 129. 

2 Mangin, Homme et Bite, p. 344. 

3 The common judicial tortures on the Continent varied somewhat 
in the different courts ; filKng a person up with an enormous quantity 
of water, and thereby causing agonising cramp and compression of the 
internal organs, was a process very frequently employed. See for 
instance C. Berriat Saint-prix, Tribunaux. Paris, 1859. 

• A sow was condemned at Savigny in 1457, " pour estre mise au 
dernier supplice et pendue par les pieds derridres d, ung arbre." — Mena- 
brea. 

See also Evans, Punishment of Animals, p. 165. 

' An engraving of this scene had been reproduced by Mangin, Carlo 
d'Addosio (" Bestie Delinquente " ) and Evans. See also P. G. Langevin, 
Recherches Historiques sur Falaise, p. 146. Paris, 18 14. 

• Thierstrafen, p. 9. 

^ Daily Mirror. London, Nov. 22, 1907. 

By the fifteenth-century laws of Sardinia, asses were condemned 
to lose one ear the first time they trespassed on a field not their master's, 
and their other ear for a second offence. See J. A. Farrer, Crimes and 
Punishments, p. 90. As to the trial of cattle by the Irish in the seven- 
teenth century, as though they were human beings, and the alleged 
testing as to whether they might be able even to read, see Lecky's 
Irelandin the Eighteenth Century, vol. i. pp. 68, 69, footnotes. London, 
1892. 

' This is alluded to by the great Victor Hugo in his story of Notre 
Dame. 

17 



258 A HISTORY OF PENAL METHODS 

from Bale, where in the year 1474 a cock was burnt 
upon the Kolenberg for having been accused and con- 
victed of laying an egg.' These " cocks' eggs " were sup- 
posed to possess magical qualities. 

Monsters,' such as the basilisk (cockatrice), were said 
to emerge from them," and they were destroyed with 
great care. 

Animals were also occasiotially drawn into sexual 
offences by human beings which were then punished with 
hideous cruelty,* person and beast being often burnt or 
buried together.' So strong was the taboo placed upon 
all allusions to sexual aberrations that (in England) 
such cases were not to be tried before a judge in 
a court, even the hearing of them being forbidden." 
And on the Continent the records were generally 
destroyed with the victims' bodies,' lest even the deeply 

1 J. Gross, Kurtze Easier Chronich, p. i2o. Basel, 1624. 

The cock was possibly an hermaphrodite or, more likely, a crow- 
ing hen (these are not very uncommon : I once possessed one. An 
old saying, well representing the common instinctive hatred of ab- 
normality, used to run, " A whistling woman and a crowing hen are 
neither good for gods nor men). 

Mr. Evans, p. 164, refers to the eighteenth-century experiments of 
Lapeyronie as showing that certain eggs were malformed through 
disease in the fowl, and often contained a small vermiform yolk, 
which may have given rise to the idea of a serpent. 

See also S. Baring-Gould, Curiosities of Olden Times, p. 56. 

2 See interesting article in the Penny Cyclopeedia, vol. vii. p. 310. 
London, 1837. 

3 These sort of popular misconceptions on physiological matters have 
many times been the cause of great cruelty. Thus among certain 
peoples a woman who gave birth to twins was considered for obvious, 
althoughfquite erroneous reasons, to have been an adulterous wife. 
See Westermarck, Moral Ideas, i. p. 395, and R. Ligon, Hist, of Bar- 
badoes, p. 47. London, 1657. 

Monsters were (and in the country villages still are) thought to be 
bom through the commission of bestiality; and perfectly innocent, 
though unfortunate mothers of malformed children, might become 
liable to their neighbours' suspicion and persecution, 

* On one occasion, in 1585, the executioner cut off all four hoofs of 
a troublesome mule, before consigning it to the flames. — Mangin, p. 349. 

' J. Ddpler, Theatrum Poenarum, p. 574, et seq. Sonderhausen, 
1693-97. Fleta, lib. i. c. 37. 

A. Corre & P. Aubry, Documents de Criminologie Retrospective, p. 465. 
Lyons, 1895. 

Among the Teutonic peoples in early periods, sorcerers, inverts and 
(sometimes) adulterers, might be burnt alive or smothered in marshes. 

' See Mirror, ch. xiv: "The mortal sin of Laesa Majestas against 
the heavenly King," etc. 

' " Car ils auraient souill6 les archives des tribunaux." — Menabrea, 
p. 522. And see Evans, Punishment of Animals, p. 150. 



THE INSTINCT OF RETALIATION 259 

blood-stained criminal torture-houses should in some 
way become contaminated by them. All through, the 
legal fiction of full responsibility was kept up. At Vanvres, 
in 1750, a she-ass was saved from a dreadful death by 
evidence of good character/ her master alone being sen- 
tenced for the offence. In the year 1457, at the trial 
of a sow with six little pigs, for killing a child, the sow 
was duly condemned for mmrder, but the piglets were 
acquitted on account of their youth and of the bad 
example set by their mother.' 

I have not thought it needful to multiply instances, 
but the literature on the subject is very considerable, 
many of the authorities I have quoted giving a great 
number of references.' 

The cursing of the mythical serpent in the Garden of 
Eden* furnished a precedent for future anathemas, and 
was accordingly followed both in isolated instances and 
with formal procedmre. St. Bernard' denoxmced the 
flies which annoyed him when preaching at Foigny ; • 
a Bishop of Trier rebuked the birds which were flying 
about the cathedral, and forbade future entrance upon 
pain of death; whilst St. Patrick and other saints banished 
reptiles, rats and leeches, etc., from different places.' 

From time to time, however, the formal machinery of 
the Ecclesiastical Coiurts was set to work against the wild 
creatures, just as the penal processes of the criminal 
courts had been employed against the domestic animals. 
But with this difference, that while the animals which were 
individually charged with committing crimes incurred 

' Evans, p. 150. 

" Chambers' Book of Days, i. p. 128. 

' Amongst books not abready quoted are A. Chaboseau, Prods 
centre les Animaux. Emil Agnel, Curiositis Judiciaires et Historiques. 
Gaspard Bailly, Traiti des Monitoires, avec plaidoyer contre les Insects. 
For further works see E. P. Evans' Bibliography. 

* Genesis iii. 14. 

' J. Eveillon, Traiti des Excommunications et Monitoires, p. 520. 
Paris, 1672. 

' Evans, p. 28. 

' Baring Gould, Curiosities, pp. 59, 61, 62. 

Evans, Punishment of Animals, pp. 29, 103. 

Among the hills round the Mediterranean where I was brought up, 
it used to be believed by the peasants, that the processional cater- 
pillars, which infest the wild pine trees, once preyed upon garden pro- 
duce, until they were constrained by spiritual powers to take to the 
firs instead. 



260 A HISTORY OF PENAL METHODS 

painM deaths and sometimes terrible tortiirings, the 
various species which were assailed with mere maledictions 
pursued their appointed ways and were apparently not 
even aware of them. 

It was chiefly farmers' plagues/ such as rats and 
swarms of destructive insects of many kinds, against 
which the Church directed its fulminations. It is clear, 
however, that the Bishops acted ^ith caution and cir- 
ciunspection, not caring to risk disregard of their menaces. 
Pope Stephen V, when battling in the year 855 against 
an insect invasion,' offered rewards to the peasants for 
destroying the visitors, and subsequently had holy water 
sprinkled over the fields : practical efforts had to be 
resorted to first. The Church was evidently reluctant to 
proceed to extremities against harvest pests ; • doubtless 
it had been taught by past experiences, that such conflicts 
were reaUy against the mighty movements of nature, 
which knows no creeds, and it felt it must temporize. 

But in times when the trees and the crops were being 
devovired, the villagers would turn in their great distress 
to the Chvirch for help, and then the Ecclesiastical Courts 
would be set in motion. * The proceedings resembled those 
which were taken when employed against heretics or 
moral offenders. Three notices of the action had to be 
served, which if disregarded would establish contumacy.' 

Summonses ' were served by the officers of the court 
reading them at the places where the animals fre- 
quented, or leaving the notices near their holes ; ' and 

1 Though individual animals might be exorcised, the devil was 
sometimes excommunicated while in the fonn of a beast. See Baring 
Gould, Curiosities, p. 6i. Evans, p. 85. 

^ P. Lebrun, Histoire Critique des Pratiques Superstitieuses, torn. i. 
p. 244. Amsterdam, 1733. 

' Chambers, Book of Days, p. 127. 

* Vide Evans, p. 95, etc. 
" M6nabrea, p. 482. 

• Chambers, p. 127. 
Baring Gould, p. 60. 

^ Instinctive acts seem very similar all over the world ; thus Lord 
Avebury says : " The inhabitants of Lake Itasy are accustomed to 
make a yearly proclamation to the crocodiles, warning them that they 
wUl avenge the death of any of their friends by killing as many ' vaay ' 
in return, and warning the well-disposed crocodiles to keep out of the 
way, as they have no quarrel with them, but only with the evil-minded 
reptiles who have taken human Ufe." — Origin of Civilisation, p. 282. 

The same childish idea of confounding the wish to act with the power 



THE INSTINCT OF RETALIATION 261 

plenty of time was accorded to rats, mice, locusts, 
caterpillars, or whatever the particular creatures then 
accused may have been, in which to appear. Naturally, 
they did not appear ; but able counsel were always as- 
signed to them, who entered into elaborate forensic and 
more or less theological arguments on their part, besides 
raising all kinds of legal quibbles and quaint excuses for 
more delays,' which were usually granted them. The 
end generally was, that the plague abated, and the pro- 
ceedings " ran into sand," as the Germans say. If not, 
then the curses went forth, and if the marauders vanished 
they were believed in, but if the creatures still lingered, it 
might well be alleged that the Devil was helping them, 
or that the people were being punished for their past sins. 
It would appear that these spiritual penalties invoked 
on the lower animals, for fulfilling their instincts, were 
often demanded by popular clamour, and that they were 
disapproved of by numerous writers and clergy from the 
thirteenth to the seventeenth centuries.' 



Punishment of Corpses 

If men so tried to take revenge on what they hated, 
as to assail things and vmreasoning animals, much more 
would they wreak vengeance on an enemy's body ; when 
living, if possible, by mutilation and torture ; and failing 
the living, then upon the dead. Maltreatment of the 
corpse of a fallen foe was just the ordinary instinctive 

of accomplishing, finds expression in the letter which was addressed to 
the dead St. Martin and was laid on his tomb. See Hallam, Middle 
Ages, iii. 303. 

A few years ago a little girl whom I know, addressed and sent a 
postcard to her dog, which I still possess. Innumerable letters were 
received at the Zoological Gardens for Jumbo the elephant, before he 
was taken away to America. 

• Chambers, p. 127. 

Evans, p. 95. 

2 See Philip de Beaumanoir (13th cent.) ; Leonard Vair (isth cent,) ; 
Martin of Aries and Pierre Ayrault (i6th cent.) ; also, Cardinal Duper- 
ron and J. Eveillon (17th cent.), etc., etc. 

Pierre le Brun is more critical of the criminal court, observing, " Mais 
il 6toit ridicule que les ofl&ciaux pr6tendissent que leurs sentences juri- 
diques devoient avoir le m6me effetsur lesanimaux que les paroles d'un 
Saint." — Hist, Critique, i. p. 249. 



262 A HISTORY OF PENAL METHODS 

practice, xiniversal in savage and in old-world warfare 
generally. And this instinctive ferocity, when deferred 
and elaborated, resiilted in punishment. In the seventh 
centiiry before Christianity,' King Josiah dug up the 
bones of priests of another creed and desecrated the rival 
altars.' 

In 506 B.C.' " Tse et Po p'i frapp&-ent de coups de 
fouet le cadavre du Roi P'ing afin de donner vengeance 
a leurs frdres respectifs." Aristotle mentions a case of 
sacrilege in which the bones of the guilty dead were dis- 
entombed and cast beyond the borders of Attica.* 

At Rome, about a.d. 898, Pope Stephen VI saw fit to 
bring the body of his predecessor to trial.' The corpse 
of Pope Formosus, then some months buried, was brought 
before Pope Stephen and his council and placed, clad in 
prelate's robes, in a chair of state. Having appointed 
the corpse a deacon for counsel, they thus addressed it : 
" Why didst thou, being bishop of Porto, prompted by 
thy ambition, usurp the universal see of Rome ? " The 
old man's body, like a monstrous doll, might nod and 
bend while the attendants supported it, or collapse in a 
ghastly bundle if they left it alone, but it made no sound ; 
and the deacon would probably be wary in his defence, 
for there were dark holes near by, other than sepulchres. 
So they cut off its benedictory fingers and cast the corpse 
into the yellow Tiber. After other adventures, it was 
ultimately rehabilitated and put back in the tomb. 

The corpse of King Manfred of Sicily * was also cast 
out of that kingdom by order of the Archbishop of 
Cosenea. 

In 1126 the rebels having slain Eima, king of Leinster,' 

1 2 Kings xxiii. i6. 

' The ceremonial defilement of foreign sanctuaries may have been 
the main object in that particular case, but the act was quoted as a 
precedent before the Council of Constantinople held a.d. 553, when it 
was desired to anathematize certain persons who had been dead for a 
century ; the proposal was carried in spite of the opposition of Pope 
Virgilius. Vide Lea, Hist. Inq., i. pp. 230, 231. 

' E. Chavannes, Les Mimoires Historiques de Se-Ma Ts'ien, p. 23. 
Paris, 1901. 

* Westermarck, Moral Ideas, i. p. 46. 

* A. Bower, History of the Popes, vol. v. p. 73. London, 1761. 
Lea, Hist. Inq., i. p. 231. 

* Oscar Browning, Guelphs and Ghibellines, p. 27. 

* Dictionary of National Biography, art. "Macmurchada." 



THE INSTINCT OF RETALIATION 263 

are said to have burned his body along with that of a 
dog, to show their contennpt for him. 

The bodies of criminals were not infrequently burned 
immediately after hanging/ and the ordinary penalty for 
treason in England was that the person convicted should 
be drawn feet foremost upon a hurdle to the place of 
execution,* where he was hanged from a noose to exhibit 
him as a felon, between heaven and earth as being worthy 
of neither.' He was promptly cut down and, whilst still 
living, mutilated, eviscerated, and had his heart cut out 
and thrown into a fire.* The head was then cut off and 
the body was quartered and carried away to be parboiled 
to preserve it ; afterwards the head and the members 
were distributed in different places and hung up to the 
public gaze.* 

The Inquisition, when heretics had escaped its clutches 
while living, often proceeded against them though they 
were dead. There were many motives for this, since if 
the dead were condemned, their property would be seized 
upon by the State,' and the Church also got its share. 
Moreover, the sons and grandsons of heretics could not 

' See for instance the case of that amazing sex-maniac and murderer, 
Gilles de Laval, Baron de Rais (or Retz), a marshal of France, whose 
crimes are beUeved to have been the origin of the legend of Bluebeard, 
and who was executed for heretical wickedness, after a trial before 
the Bishop of Nantes and the Vice-Inquisitor, October 26, 1440. Vide 
Michelet, Hist, de France, tom. v., and T. Wilson, Bluebeard, etc., etc. 

See also an account of an eighteenth-century Puritan pogrom in 
Holland by Dr. von Romer in Jahrbuch fUr sezuelle Zwischenstufen , 
viii. Leipzig, Max Spobr, 1906. 

2 In the earhest times the victim was generally drawn by a horse 
upon the bare ground ; later, ox hides or sleighs were used. Vide Alfred 
Marks, Tyburn Tree, pp. 28, 90. 

> Coke enters into an elaborate explanation in the Gunpowder Plot 
proceedings. See State Trials, ii. p. 184. 

* See for instances State Trials, i. p. io88, a case in 1570 ; same, 
vol. V. p. 1334, case in 1662. 

» After the Monmouth rebelUon " The pitch caldron was constantly 
boiling in the assize towns, and the heads and limbs preserved in it 
were distributed over the lovely western country, where, for years 
after, in spite of storms and crows and foxes, they frightened the village 
labourer as he passed to his cottage in the evening gloom." — Meiklejohn, 
Hist. ii. 157. 

" The peasant who had consented to perform this hideous office 
afterwards returned to his plough. But a mark like that of Cain was 
upon him. He w2is known through his village by the horrible name of 
William Boilman." — Macaulay. 

• Lea, Hist. Inq., i. p. 507. 

W. H. Prescott, Ferdinand and Isabella, i. p. 260. New York, 1 845. 



264 A HISTORY OF PENAL METHODS 

hold office except by special permission ; ^ so that none 
amongst whom there might be even traditions of heresy 
should hold place or power. 

Also, the orthodox desired to free their cemeteries from 
what they would regard as contamination ; according to 
Dr. Lea, dead persons found guilty of offences, = involving 
imprisonment or some lighter punishment, would be 
merely dug up and cast out of church territory, whilst 
those whose misbelief had deserved the stake, were drawn 
— although but corpses or skeletons — through the streets, 
preceded by a trumpeter fore-announcing — " Who does 
so, shall perish so " ; ' and were burned as objects accursed. 

In this deliberate burning of mere remains we perceive 
the vengeful and instinctive nature of the proceedings. 
And this is made the more manifest when we find that 
suspected and accused persons who had contrived to flee, 
and were condemned in their absence for not appearing, 
were yet conveyed in effigy to the flames, the figures 
being dressed up in all the grotesque attire worn by the 
condemned.* These effigies often represented the dead 
in the great processions of the Autos da F6, and carried 
their bones and dust in small chests. The names of the 
persons they represented were marked upon them, and 
they were borne aloft on poles in front of the prisoners, 
to be burned on the flaming p37res that were kindled for 
living men. 

This practice of disinterring corpses was not by any 
means unknown in England : ' in 1428 the bones of the 
preacher Wycliffe, who had died forty-five years before, 
were exhumed and bufned ; in 1514 the body of Hunne 
was sent to the flames at Smithfield for heresy • ; and 
in 1532 the last act of the last free convocation of Eng- 
land ' was to dig up and burn the bones of one Tracey, 

'■ Lea, Hist. i. p. 499. 

Nicolas Eymeric, Directorium Inquisitorum : Quaestio Ixiii. 

Prescott, Ferdinand and Isabella, i. 263. 

Antonio Puigblanch, Inquisition Unmasked, vol. i. p. 281. London, 
1816. 

' Hist. Inq., vol. i. p. 404. 

3 Ibid. i. p. 553. 

* Puigblanch, Inquisition, i. pp. 196, 317. 

I' C. Oman, Hist., p. 80. 
gi " James Gairdner, The English Church, pp. 37, 38. 

' Gairdner, p. 134. 

H. A. L. Fisher, Hist., p. 314. 



THE INSTINCT OF RETALIATION 265 

who was found to have expressed heretical sentiments in 
his will. We may here allude to the story of Becket's 
tomb, although it is of very doubtful authority. When 
Henry VIII in 1538 resolved to lay hands upon the 
priceless treasiire which pilgrims, in the course of four 
centuries, had heaped upon the shrine at Canterbury, 
he followed his usual practice of committing his crimes 
with all the show and pomp of a lawful process. 

A formal citation to appear within thirty days is said 
to have been served on " the late Archbishop," to answer 
to grave charges of high treason. One would have given 
much to have beheld the lofty-minded and imperious 
prelate stand up before the burly ruffian then upon the 
throne : brave men must have been Very rare in Hemry's 
day, but doubtless they always are in every age. It 
was not to be, for neither in the allotted month, nor yet 
in thirty million times as many years as there were seconds 
in those thirty days, might the dead man attend to any 
earthly summoning ; and only a paid proctor set up a 
Dutch defence before the tjnrant king. Becket was then 
of course immediately condenmed, the gold and jewel- 
crusted plating of his tomb was torn away, and two great 
chests were filled with the stolen treasure. The ring of 
world renown placed there by Louis VII was placed 
upon the thumb of Henry, and the archbishop's body was 
disinterred, and what remained of him was burned to dust 
and ashes. 

Although the story just related has been alluded to in 
a Bull of Pope Paul III, it is considered to have been a 
fabrication. Still such forgeries were founded upon 
possibilities, and as Mr. Froude observed,' " In the fact 
there is nothing absolutely improbable, for the form said 
to have been observed was one which was usual in the 
Church when dead men, as sometimes happened, were 
prosecuted for heresy." So that the mere existence of 
the legend gives us a side-light on instinctive punishment. 

In 1558 Cardinal Pole burned a number of books and 
also some bodies ; ' and in 1603 the corpse of Francis 
Mobray was duly produced at the legal bar and then 

1 History of England, vol. iii. p. 302. 

See also H. S. Ward, Canterbury Pilgrims, p. 289. 

3 Meiklejohn, Hist. ii. 39. 



266 A HISTORY OF PENAL METHODS 

received sentence ; " to be dismembered as a traitor, 
his body to be hanged on a gibbet and afterwards quar- 
tered ; his head and limbs stuck upon conspicuous places 
in the city of Edinburgh, and his whole estate to be 
forfeited." ^ 

After the Restoration the bodies of Cromwell, Ireton 
and Bradshaw ' were removed from the Abbey and, on 
January 30, 1661, the anniversary of King Charles's death, 
they were hanged at Tyburn and afterwards buried 
beneath the gallows. 

Instinctive acts generally persist, and in 1902 there was 
another instance at Northenden. A man had murdered 
his master (a crime which once had been petty treason) 
and then killed himself, and his body had been locked up 
in a stable awaiting inquest. In the night some neigh- 
bours broke in and dragged out the lifeless body of the 
offender into a field, where it was kicked about and other- 
wise set upon.' The bodies of persons who have been 
executed are still so far deliberately dishonoured, that 
they are buried in quicklime within prison walls.* 

Punishments as employed in the instances we have 
been examining will not now be defended as rational. 
But they were yet exceedingly natural as instinctive acts, 
and were evidently carried out for the pleasure of doing 
them. We have looked into the crude beginnings of 
punishment ; which sprang from revenge — the notion 
that plenal responsibility could be extended even to 
things — the assumption that the attempted, or real, 
infliction of pain, was always needed to put things right 
or to satisfy " justice." 

Punishments are not remedies which were devised by 
man's reason, but concessions to sub-human instincts 
which stir in him. Punishment is a survival of savagery. 

1 H. Arnot, Criminal Trials, p. 65. 

2 R. Lodge, Hist., p. 9. 
State Trials, vol. v. p. 1335. 

' Daily Chronicle, Feb. 26, 1902. 
* DuCane, Punishment, p. 26. 



CHAPTER XVII 

CLASSIFICATION OF CRIMES 

For the sake of clearness in our line of reasoning I have 
already spoken of the " Criminal." But for a criminolo- 
gist to leave it so, would be as for a doctor to describe 
an iUness as " disease." What should we think of any 
hospital which placed aU kinds of cases in its wards, 
mixing (as they used actually to do in some countries in 
the last century) * the ophthalmic cases with the surgical, 
and the infectious with the incommunicable ? Still 
more, what should we think if the said hospital possessed 
only one remedy — say blisters ? We take in a case in- 
volving perhaps a congested region or requiring a counter- 
irritation, and the blister does very well ; but we fiiid 
another case perhaps presenting a broken or bruised 
limb — but again a blister is applied to the already sore 
and injured part ! What would be said of such an 
institution ? what would be done to those who managed 
it? 

And nothing reveals more clearly the state of stagnant 
putrifjdng neglect in which the treatment of crime has 
been allowed to lie, than the great damning fact, that for 
the thousand sins and sorrows that must come before the 
Courts we have all along had but one " remedy "—in 
various doses — and that one remedy was punishment. 

Crime is divided into two great classes which have a 
totally different origin, and require, of coinrse, different 
treatment. There are crimes of circumstances, and 
crimes of impulse. In other words, one great group of 
offences arises from the stress and pressure of environ- 
ment ; the other from some defect or abnormality in 
the nerve-structure of the individual. 

» See for instance John ConoUy, The Treatment of the Insane, p. 7. 
London, 1856. 

267 



268 A HISTORY OF PENAL METHODS 

The former class comprises the offences which are set 
up by surroundings, and which perhaps the majority of 
people would fall into under a Uke environmental pressure. 
The latter arise from constitutional idiosyncrasies which 
lead to acts that may not even tempt the ordinary run 
of men and women. In my opinion the key to the 
ultimate solution of the whole crime-problem lies in the 
recognition of this great and absolute division. For 
though offences do sometimes appear to overlap the line 
of separation, yet I believe the existence of these two 
great groups is as exact and positive as any broad and 
classifying law ever laid down by science. 

The group for which the criminal law really exists is 
for the former, or the Circumstantial crimes. In these, 
we deal with the main stream of temptation, with the 
jagged " narrows " caused by competition, and with the 
fearful race for wealth. In modern industrial states, 
money, or the want of it, fixes a gulf almost unbridgable 
between the rich and poor. The " dingy dumb millions " 
produce without enjoyment, and the ruling classes enjoy 
without proportionate production. There is a currency 
that can be coined, stolen, and forged to any extent, 
and those who obtain control of it by means however 
anti-social, which the law does not, or cannot, prosecute 
as criminal, are, ipso facto, rewarded as never noble deeds 
are recompensed. Human nature is thus confronted by 
the threefold impetus of want, desire, and ambition, and 
" as long as society bows and cringes before the great 
thieves, there will be little ones enough to fill the jails." ' 
" Crime," says Dr. Nordau, " is human parasitism ; in 
this sense most men are criminals, in fact the germ of 
crime exists in all." ' 

Who then can wonder that this dazzling allurement 
proves too much for the knavish and lax-principled, and 
more especially (since the true calculating villains are 
not often caught) for those tmbalanced and imstable 
people who frequently, for a brief spell of luxury and 
leisure, incur a lasting ruin and disgrace, and cast away 
from their weak lives for ever, any good prospects which 
they might have had ? Yes, the big cities and civilization 

' IngersoU, Crimes against Criminals, p. 28. 
' La Revue, Paris, October 15, 1902. 



CLASSIFICATION OF CRIMES 269 

give but too much occasion that the circumstantial 
crimes indeed should come. Mr. Troup, of the Home 
Of&ce, stated in evidence that " the number of crimes 
against property is so large compared with other crimes 
that the variation in the total of indictable offences is 
completely dominated by the offence against property." * 
The same eminent authority tells us that larceny and 
one or two kindred offences make up about five-sixths 
of the whole volume of serious (indictable) crime. Thus, 
according to the compiler of our Judicial Statistics, we 
have only the little fraction of one-sixth left to express 
all other indictable crimes ! The majority of these will 
doubtless come under our second, or impulse division, 
and are often absolutely pathological. " There is an 
absolute distinction between crimes of passion and crimes 
properly described." ^ Compressed into this little fraction 
of the whole crime-current we shall find the assault cases, 
the homicidal and the sexual, in all their infinite variety 
and (apparent) degrees of moral responsibility and guilt ; 
all the more serious outbreaks of hatred, jealousy, and 
passion ; lastly, we shall find the would-be suicides 
and the sexual inverts, who, in the light of reason and 
modern scientific knowledge, should not be classed as 
criminals at all. 

So vastly have human ideals and beliefs been changed 
and dislocated in the course of history that, in the telling 
words of J. S. Mill, " it often happens that the universal 
belief of one age of mankind — a belief from which no one 
was, nor without an extraordinary effort of genius and 
courage could, at that time, be free — becomes to a 
subsequent age so palpable an absurdity that the only 
difficulty then is to imagine how such a thing can ever 
have appeared credible." Hard has it ever proved for 
reason to pierce prejudice ; nay, truth has shone amongst 
us like the sun — the most tremendous obvious thing in 
all the world, and yet withal, in its meridian majesty, so 
very seldom faced and looked upon ! So different indeed 
have arguments appeared from widely opposing points of 
view that Montaigne even went the length of saying, 

1 Departmental Committee of 1895, Evidence, p. 407 ; and see 
diagram opposite p. 540 of the above. 
» Nordau in La Revue just quoted. 



270 A HISTORY OF PENAL METHODS 

" variety of opinion proves that things are only what we 
think them"— a thought which Kipling has popularised 
in his delicious satire about the dreams of Kew. 

No doubt much, if not all, of the confusion which has 
prevailed in dealing with the hard world-problems has 
been due to the presence of those mighty, if often morbid, 
influences of which we can see traces in the wildest 
savage tribes ; to the influence of Demonolatry and the 
resultant forces of extra-rational sanction and condemna- 
tion. Had reason had full play the greater nations would 
long ago have attained to that degree of precision and 
spontaneous uniformity which has been won in the 
domain of the physical sciences ; we should not see 
whole groups, if not communities, engaged in bitter strife 
with one another on ethical and moral issues. But 
reason and treason were about equally dangerous offences 
in the Middle Ages, and there are few who dare be ab- 
solutely honest in all the many-interested world to-day ! 
People are indeed habitually imreasonable in the domain 
of morals. But ethical systems owe neither their in- 
ception nor their preservation to rational processes. 
For, in the words of Locke, the three great tlungs that 
govern the world are reason, passion, and superstition : 
the first governs a few, the last share the biilk of mankind 
and possess them in their turns ; but superstition is 
the most powerful and produces the greatest mischief. 
Isolated epochs there have been — little oases in the vast 
deserts of Demonolatry — where pagan sanity, philosophic 
teaching, and even revolutionary zeal, established human 
happiness as an ideal Eind consequence, as the criterion 
of moral conduct. But taking a wide view of the past 
(and remembering that we in this present world are not 
permitted either to justify or to explain earth's mysteries) 
there seems but too much truth in Schopenhauer's saying, 
" wickedness has the upper hand, and foUy the casting 
vote" ; or, as Ibsen expresses it in one of his plays, the 
majority is always wrong ! For reason, though indeed 
the highest, and the latest, of man's attributes, has been, 
so far, perhaps the least effective force directing hiunan 
destinies. 

The influence of standpoint upon human judgment 
is most amazingly revealed in the long history of suicide. 



CLASSIFICATION OF CRIMES 271 

Even apart from frequent theological bias, the very 
military and paternal states of old might well look with 
misgiving on practices which might deprive them of their 
citizens and might also maintain open the door of that 
one sanctuary which aU the despotisms and decrees of 
man have never been allowed to violate. We know that, 
once a Roman made appeal to Csesar, the matter passed 
from the provincial courts, which then could neither 
pardon nor give sentence. But there was yet appeal 
beyond the seat of Csesar ; and when the humblest reached 
the domain of Death, the grave-gate closed against all 
soimd or siege, and barred men out for ever. It was this 
world-old thought that Seneca — the brother of Gallio, 
and the tutor of Nero — expressed in the fine passage that 
has come to us : "To death alone it is due that life is 
not a punishment, that erect beneath the frowns of fortune 
I can preserve my mind imshaken and master of itself. 
I have one to whom I can appeal. I see before me the 
crosses of many forms. ... I see the rack and the scourge 
and the instruments of torture adapted to every limb 
and to every nerve ; but I also see Death . . . wherever 
you look there is the end of evUs . . . the eternal law has 
decreed nothing better than this, that life should have 
but one entrance and many exits." ' 

Such proud defiance of all human power may have 
proved offensive to authority. Whom the king would 
he slew ; but whom he would he could not keep alive. 
The very thought of that unbroken subject's sanctuary 
might seem to have the trend of mutiny ! At any rate 
suicide was forbidden by the early laws of Athens * and 
Sparta.' In the former city the body was not allowed to 
be honourably cremated, and the right hand was severed 
from the corpse.* 

Aristotle • called it a sin against the State, and Pytha- 
goras forbade men to depart from their guard or station 
in life without an order from their commander • ; that is 
God. 

1 Lecky, History of European Morals, i. p. 217. 

2 Wynn V^^estcott, Suicide. London, 1885. 

3 Lisle, Dm Suicide, p. 347. Paris, 1856. 

*■ See Alexander Grant, Ethics of Aristotle, ii. p. 141, note. 

• Ethics, V. XV. 

• Cicero, De Senectute, xx. 73. 



272 A HISTORY OF PENAL METHODS 

Plato allowed it occasionally in his Laws,^ but forbade 
it in his Phcsdon.^ 

But with the rise of philosophy and intellectual scepti- 
cism, also perhaps with the increased assertion of the 
individual, the feeling towards suicide became quite 
changed. The practice grew to be defended not only as 
a right belonging to the citizen, but as a deed befitting 
men of lofty lives and aspirations. It was upheld by 
the great schools of classic teaching and advocated by 
Sophists, Cynics, Stoics, and Epicureans, although not 
always from a common standpoint. But Stoic pride 
and Epicurean calculation alike agreed that self-inflicted 
death was often the only comrse open to honour, the only 
path that led to peace and happiness.' At Ceos and at 
Massilia, about a.d. 31,^ the municipality heard applica- 
tions for permission to commit suicide,' and kept a public 
supply of prepared hemlock poison for the use of those 
to whom leave had been granted. A system very much 
like this was suggested by our own Sir Thomas More in 
his Utopia, in which he has been followed again by many 
modern writers. 

This interesting custom is said to have been brought 
from Greece,' perhaps from Athens.' In fact, we may 
say that the ideal of death became accepted by the pagan 
world as part of its best life.' And, in the words of a great 
historian,* " when we remember how warmly it was 
applauded or how faintly it was condemned in the 
civilizations of Greece and Rome ... we must realize the 
complete revolution which was effected in this sphere by 
the influence of Christianity." " But the acceptance of 
suicide as part of the social system, which in Greece and 
Rome was the outcome of scepticism and ratiocination, 

1 Leges, ix. 

2 For various views taken in Greece and Rome the reader may go 
to Lecky's History of European Morals. Professor Westermarck's 
chapter upon the subject {Moral Ideas, vol. ii. ch. xxxv.) is a verit- 
able mine of information on the whole question. 

3 Strahan, p. i6. 

* Lisle, Suicide, p. 312. 

^ Wynn Westcott, Suicide. 

" Lecky, Hist. May. i. p. 218, note. 

7 O'Dea, ch. iv. p. 107. 

8 Dean Farrar, Early Days of Christianity, p. 15, note. 

• Gibbon, Dr. W. Smith's edition, vol. v. p. 326. 
10 Lecky, Hist. Mor. ii. p. 54. 



CLASSIFICATION OF CRIMES 273 

has been brought about and upheld in many other coun- 
tries by the very rehgious spirit which has often proved 
so hostile to it. Religious suicide is said to be extensively 
recorded in the history of ancient Egypt.' It has been 
for ages a time-honoured tradition in China." It was, 
however, criminal to kill a prisoner who had been left for 
death, even at his request. And if his son, grandson, 
slave, or hired servant should then despatch him, the 
slayer was to lose his head " for so great an offence 
against piety and subordination." • 

But the universality of the practice is told by every 
traveller, while the death of the brave Admiral Ting was 
an important event in the late Chino- Japanese war. 
We may remember also that, in deference to Chinese 
custom, some of the leading " Boxers " were ordered to 
commit suicide by the allied powers of Europe. 

Among the Japanese * suicide has been a very ancient, 
often a religious institution.' It is looked upon as a 
step in spiritual evolution by the Brahmans,* and is 
largely practised wherever Buddhism is the prevailing 
faith.' In India it was regarded by the Hindus in the 
light of a religious duty.' To be drowned in a sacred 
stream * was the best consecration of a pious pilgrimage." 

In the ancient Laws of Manu suicide is evidently pro- 
vided for. " When the father of a family perceives his 
muscles becoming flaccid and his hair grey, and sees the 
child of his child, let him seek refuge in a forest " " (vi. 2). 
This is the oldEastem ideal, to go away into the wilderness, 
to be with nature and to dream and pray. But the 
Brahman was to cast off mortality ; he was to cease to 

1 Reference to the practice in the case of certain prisoners in 
Wilkinson's Manners of the Ancient Egyptians, edited by Dr. S. Birch, 
p. 307. London, 1878. 

Strahan, p. 21. 

Wynn Westcott. 

The habit among the Ethiopians is alluded to by Diodorus Siculus. 

2 Strahan, p. 5. 

' Sir George Staunton, Penal Code of China, p. 441. London, 1810. 
* E. Lisle, Du Suicide, p. 332. 
s Strahan, pp. s and 36. 
' Ibid. ch. i. 
' O'Dea, ch. iii. 

8 Ibid. p. 18. 

9 Le Tourneau, Sociology, ch. xiii. p. 243. London, 1893. 
w Josephus, The Jewish War, bk. vii. 

" Sir William Jones, Institutions of Manu. Madras, 1880. 

18 



274 A HISTORY OF PENAL METHODS 

harm, to rage, to fear, even to love (so different has been 
the ascetic from the classic view of inspiration). He was 
to be beyond all dread and all desire. " Let him not wish 
for death," says the text (vi. 31). " Let him not wish 
for life ; let him expect his appointed time as a hired 
servant expects his wages." ' In the view of Schopen- 
hauer suicide is not the negation of the will, but rather 
its strongest affirmation ; and the spirit seeking reunion 
with the Universe was to cast off feeling. Hence, it was 
better not to rush to death or to will anything, but to 
dissolve through maceration and be dried up into air ; 
but if perchance the Brahman had an inciurable disease 
he might wander away towards the north-east, " feeding 
on water and air till his mortal frame totally decay, and 
his soul becomes united with the Supreme " ' (vi. 45). ■ 

The Indian commentators say " that a man may 
undertake the Great Departure, on a jomrney which ends 
in death, when he is incurably diseased or meets with a 
great misfortune, and that because it is taught in the 
Sastras it is not opposed to the Vedic rules which forbid 
suicide." "... a voluntary death by starvation was 
considered a befitting conclusion of a hermit's life." ' 

But in the beautiful idea expressed in the Laws (Manu, 
vi. 40), " To the Brahman, by whom not even the smallest 
dread has been occasioned by sentient creatures, there 
can be no dread from any quarter whatever when he 
obtains release from his mortal body." 

The teaching of the Scandinavian religion was of a 
different character, yet it extolled suicide as a veritable 
passport into paradise. But the Northern nature was 
ever strong and fierce in face of man and myth ; and 
its religion — as usual, corresponding to the soil below 
from which it grew — contained neither the dread nor 
dreaminess of Oriental creeds. Of the Viking heaven 
it might indeed be said that " the violent bear it away." 
Odin, the divine warrior, received not those to feast with 
him who died in bed unscathed.* Valhalla was only for 

1 O'Dea, p. 104. 

2 Jones, Manu, p. 141. 

^ Biihler's Laws of Manu (Sacred Books of the East), edited by F. 
Max Miiller, vol. xxv. p. 204 ; note on vi. 31 and 32. Oxford, 1886. 

* The Goths held much the same belief. See E. Durkheim, Le 
Suicide, p. 234. Paris, 1897. 



CLASSIFICATION OF CRIMES 275 

the battle-knights ; it was thus called " the hall of those 
who died by violence." ' Hence the custom of bestowing 
the mark of the spear, by which the aged would " give 
themselves to Odin." ' The ancient Sagas of the North ' 
have handed down many time-honoured legends about 
the self-dealt death of kings and heroes.* The Jarl who 
could not die in the delight of battle, feeling the cold 
and numbing touch no valour could resist, scorned to 
decay, corrupted by disease. There exists more than 
one stately tale of an old king, out-worn, broken down, 
who sailed away in his funeral barque, with the fir-cones 
piled, and his armour on — and left the land for the dark- 
rimmed deep, " in a kingly way to meet King Death " ; 
and then in the silence of night and sea, he lighted the 
cones and the sky was red, and burned on his ship as a 
Viking should. Or else he lay down in his armour, and 
turned his faithful sword at last against its master.' 
(Was it not named, and loved, and ultimately buried 
with him ?) 

A fine description of this state of mind is given in the 
following poem, which I select from the century-old work 
of a most ardent student and translator of the Northern 
Sagas. The hero feels his final hour is come, but he will 
face it, who had never feared. 

" Shall Oswald, then, 
Sink, tamely sink, to everlasting night ? 
Shall feeble age with lingering hand conduct him 
To the bleak region girt with stubborn frost. 
And bend this warlike heart in massy chains of folded ice ? 
What ! shall the holy bards, who sang my glorious deeds, thus 
End the song ? ' Alas ! he dared not snatch the joys of 
Heaven, but meanly fell the prey to age and sickness.'"* 

And then the old chief sees Valhalla opened and Odin 
sitting at the feast, and his own golden chair unoccupied 
and waiting him ; and so he struck, to storm the hill of 
heaven. 
The whole position of the Jews with regard to suicide 

> Strahan, p. 21. 

2 Du Chaillu, The Viking Age, i. 373. London, 1889. 

^ Ency. Brit. 

• Lady Gregory, CuchulUn of Muirthemne, ch. vii. p. 139. London, 
1902. 

• See Fouqu6's Theodolf the Icelander. 

• F. Sayers, Poems, p. 94. Norwich, 1803. 



276 A HISTORY OF PENAL METHODS 

is strangely neutral, if indeed they did not rather favour 
it.' Although there are some few cases (four, I believe) 
of self-destruction mentioned in the Bible, they are 
described without remark. It has been alleged that the 
Rabbinical teaching was in the olden time distinctly 
hostile to the practice,' but that later on a regular philo- 
sophy of suicide arose.' In support of the view that it 
had been once condemned we have the well-known speech 
of Flavins Josephus, in which he declared that the Jews 
used not to bury the bodies of their suicides till after 
sunset. All sorts of strange superstitions always chng 
closely round the vast movements of Nature ; thus 
people were popularly supposed in seaside places to be 
born only with the rising, and to die, or "go out," with 
the receding tide. Snakes, eels, etc., were affirmed to 
writhe and live until the setting of the sun. The practice 
of night-burial of suicides may well have had its origin 
in some such rustic notions. 

The erudite Dean of St. Paul's, referring to this passage,* 
said that he knew not upon what law it was founded. Dr. 
Strahan ' conceives it possible that Josephus may, in the 
desperate circumstances in which he found himself, have 
been confounding Jewish with Athenian law. But the 
more important fact is that, as Dr. Donne ° points out, 
the Jewish leader at the time was pleading for his life. 
The circumstances surrounding his discourse are so 
remarkable that we must quote Josephus's own account 
of them. 

In the thirteenth year of the Emperor Nero the siege 
of Jotapata had just ended, and one more Hebrew 
hiding-place had fallen before the legions of Rome, 
the terrible all-conqueror. Flavius Josephus, the com- 
mander of the Israelites, had, with a remnant of the 
garrison, sought refuge in a cavern. After quite vainly 
seeking for his body among the slain, the victors had 
discovered his retreat, and had then summoned him 
to yield in friendly terms. This he was willing to do, 

1 strahan, p. 8. 

2 Lisle, Du Suicide, p. 341. 

3 O'Dea, p. 63. 

* John Donne, BIAeANATOS, p. 96. London, 1648. 

' Suicide, p. 12. 

« BIAeANATOS, p. 96. 



CLASSIFICATION OF CRIMES 277 

but the desperate soldiers " ran at him from all sides 
with drawn swords, upbraiding him for cowardice and 
manifesting ;i determination instantly to cut him 
down." ' 

It was under these circumstances that he made his 
speech aguiast all suicide, but linding it of no avail, he 
had recourse to something like a stratagem. " ' Since 
you arc resolved to die,' he cried, ' let us commit our 
mutual slaughter to the lot, and let him to whom it falls 
die by the sword of him who comes next to him, and the 
same fate will thus pass through all.' To a proposal so 
apparently fair they readily assented, and having thus 
far prevailed he cast tliu lot. He to whom it fell bared 
his throat to the next, not doubting but the general would 
soon share his fate, for death with Josephus they deemed 
sweeter than life." But the wily general had no such 
intention, it seems ; being left with only one other, 
" and anxious neither to be condemned by the lot himself, 
nor, should he remain the last, to stain his hands with 
kindred blood, he persuaded him also, on a pledge given, 
to remain alive," and they surrendered to Vespasian. 
Josephus, then, can hardly be considered an impartial 
commentator, and, devout as the Jews have always been 
to their national law and religion, he very evidently failed 
to inliuence them. 

Very different in tenor were tlie words of another 
Jewish leader ;it the tragic siege of Masada. " For of 
old," he said, " and from the lirst dawn of reason, have 
the national laws and the divine precepts, confirmed by 
the deeds and noble sentiments of our forefathers, con- 
tinued to teach us that life, not death, is a misfortune to 
men ; for it is death that gives liberty to the soul and 
permits it to depart to its proper and pure abode, where 
It will be free from every calamity." • And so the gallant 
Eleazar perished, along with his devoted garrison of 960, 
men, women, and children ; and when the victorious 
Romans swarmed into the fortress they found but two 
or three who had hidden away from the sight of their 
desperate countrymen, and all the rest consumed by sword 

» Josephus, The J*wish War, Dr. Traill's edition, bk. ill. p. 36. 
London, 1851. 
• Traill's /o,w!/)/i».s, vol. ii. p. ^43- 



278 A HISTORY OF PENAL METHODS 

and fire. Josephus spoke of this as having been a 
" miserable necessity." Moreover, the Jews in all ages 
have frequently resorted to this last extremity when 
pressed by overwhelming enemies ; thus in 1095 a 
multitude fell by their own hands in France to avoid 
torture.' At York, in the time of Richard I., the Rabbi 
Jocen repeated," upon a somewhat smaller scale, the 
doings of Masada, and the same happened at the siege of 
the castle of Verdun in 1320.' Doubtless there are many 
other instances. In the face of all the negative and 
positive evidence, we cannot say that suicide was always 
held accursed, or even ignoble, by the " People of the 
Book." 

As we have seen, the later pagan law permitted suicide, 
which only entailed penal consequences if practised to 
escape conviction for some anterior and actual crime. 
This spirit of toleration continued long, for the old pagan 
legislation remained unaltered in the Theodosian * and 
Justinian ' Codes. But meanwhile a fresh and fanatical 
moral system was rapidly asserting its poWer over the 
Western world, and the new system came with the 
preaching of the new religion, Christianity. Having no 
direct precepts in their sacred books, the Christians 
appear to have been somewhat undecided as to suicide. 
The practice, it has been said, persisted, " but the pleas 
were altered to suit Christianity ; it was now to secure 
from the danger of apostasy, to procure martyrdom, or 
to preserve the crown of virginity," ' etc. For this last 
reason there were many suicides, perhaps the most re- 
markable being that of St. Pelagia, a girl of only fifteen, 
whom the Church afterwards canonised, and whose 
memory, says Donne, is celebrated on the 9th of June.' 
Many other Christian suicides of the same character • 
have been recorded.' 

It is said that at the capture of Rome by the Goths in 

1 Lecky, Hist. Mor. ii. p. 50. » Dickens, Hist. Eng. p. 73. 

" Strahan, p. 24, * Lecky, Hist. Mor. vol. ii. p. 50. 

^ Ency. Brit., art. " Suicide." • Ibid. 

' Strahan, p. 20. • Wynn Westcott, p. i6. 

' Strahan, p. 20. 

For the views of the early Fathers of the Church, and indeed for 
the history of the whole subject, the reader is referred to Professor 
Westermarck's Origin and Development of the Moral Ideas, vol. ii. 
chap. XXXV. 



CLASSIFICATION OF CRIMES 279 

410/ a great number of Christian women killed themselves* 
rather than fall into the power of the abandoned soldiery.' 
But suicide to preserve chastity has been upheld and 
defended by many of the early Fathers,* notably by 
St. Ambrose, St. Jerome, and St. Chrysostom. On those 
extreme occasions, such as when St. Pelagia cast herself 
over the parapet, " Catholics have claimed that there was 
special inspiration which impelled her act and gave per- 
mission for it. Slow sinking brought about by the long 
practice of intense asceticism, which may be said to have 
amounted to death, self-occasioned out of purely re- 
ligious motives, ' was looked upon as being worthy of the 
highest honour. ' We saw something of religious macera- 
tion as a worthy life-end in the Laws of Manu, although 
there seemed to be a different ideal. It must, I think, 
be admitted, that with the Christian ascetics death was 
not the deliberate aim, although it was inevitably brought 
about by the strain and intensity of their religious 
exercises. 

Like all intensely ascetic and spiritual religions, Christi- 
anity engendered more or less indifference towards this 
present life. Expecting the swift and sudden advent 
of the world-end. Christians despised its cares and shrank 
from its pursuits. Before the tremendous thought of the 
approaching Judgment Day, the so-called serious affairs 
of life became as trivial matters, and its best pleasures 
seemed intrusive snares. It was this overwhelming 
weight of expectation that caused them easily to be 
accused of " hatred to mankind " ; but what they did 
hate was mortality ; fully believing (and in a way we 
little understand, for faith grows cold when hardened into 
monuments) in the most swift and certain resurrection 
of the body, they longed to cast aside its limitations and 
corruption.' The very clouds on-drifting with the storm 

' Gibbon's Roman Empire, ch. xxi. 

2 O'Dea, p. 75, note. 

3 Strahan, p. 21. 

* Lecky, Hist. Mor, ii. 47. 
s Wynn Westcott, p. 16. 

« Lecky, Hist. Mor. ii. p. 48. 

' Staeudlin, Geschichte der Vorstellungen und Lehre vom Selbstmorde. 
1824. 

• See M. Felix Bourquelot, Biblioihique de I'Ecole des Charles, torn. iv. 
p. 242. Paris, 1 84 1. 



280 A HISTORY OF PENAL METHODS 

stood forth as tokens of the wrath to come ; the far- 
breathed voices of the angry elements reminded them of 
the great final cataclysm. The pagan peoples still might 
shear and sow, and fill their minds with cares of flocks 
and fields. The early Christians listened for the breath 
that was to raise the harvest of dry bones, and looked to 
see them join and stand erect ; their hopes were set on 
high. 

Thus while the dazzling dreams of real and heart-felt 
faith paled the dull work-day dress of actuality, they 
set alight the zeal of mart5n:dom. So sweet is human 
praise, so strong the call of the ideal in our natures, that 
there has never been a lack of sacrifice, given a really 
great occasioning. And the believers in the Way had 
absolutely all upon the issue of their fortitude : on earth, 
such veneration as no kings receive ; ' beyond it, angel 
throngs, the ecstasy of close and present heaven. And 
if there could be yet further incentive, we must not lose 
sight of the other side of the question — disgrace in the 
sight of all believers, and the apostate's part in the abyss, 
in hell, which roared as close beneath as heaven shone 
above. No wonder, then, that martyrdom was sought,^ 
in persecution periods, by provoking, almost compelling 
death at the hands of the pagan powers,' and later on, in 
snatching the martyr's crown,* even though it involved 
the soon-to-be-forbidden price of suicide." 

"The desire for mart5a'dom," says Lecky, "became 
at times a form of absolute madness, a kind of epidemic 
of suicide, and the leading minds of the Church found 
it necessary to exert all their authority to prevent their 
followers from thrusting themselves into the hands of their 
persecutors." ' It is said that at the Council of Elvira, 
about A.D. 305,' a canon was passed denying the honours 
of martjnrdom to deliberate provokers of punishment, 
such as the idol-breakers.' Mensurius, a bishop of 

1 See Renan, Marc. Aurile, ch. xxix. p. 525. 

'^ Charles Moore, A Full Inquiry . . . Suicide, vol. i. p. 288. Lon- 
don, 1790. 

3 See Gibbon, ch. xvi. * Donne, BIAeANATOZ, p. 186. 

6 Todd, Life of St. Patrick, p. 454. 

* Lecky, Hist. Mor. vol. i. p. 390, etc. 

^ Moore, A Full Inquiry, vol. i. p. 291. He calls it a council of 
lUiberis. 

• Conybeaxe, Monuments of Early Christianity, p. 13; London, 1894, 



CLASSIFICATION OF CRIMES 281 

Carthage, early in the fourth century, and Csecilian his 
successor (a.d. 311), also endeavoured to check the in- 
ordinate love for mart5nrdom at that time prevalent 
among the Christians of North Africa, amongst whom it 
was held to be " the becoming conclusion of the Christian 
life." ^ Somewheie about this period there arose in 
Africa ' the formidable sect of the Donatists.' 

With these, the death-longing (perhaps really what 
may be called the " other side " of those transcendent 
visions of the world to come, to which we have referred) 
was most intense ; the hesitating pagan powers, nay, 
even passers-by upon the highroads, were frequently 
compelled to grant them execution ; but failing this, they 
made end of themselves in all manner of ways, or leaped 
from cliffs as eagerly as those who " went to Odin." 
Petilian, a Donatist bishop of Cirta, about 395-400, 
" taught that whosoever kiUed himself as a magistrate 
to punish a crime committed before, was a martsnr." * 
Although assailed and anathematised by councils, at 
Rome in 313, Aries in 314, and crushed by the Council of 
Carthage in 411,^ the Donatiets smouldered on for some 
three centuries, * till the whole Church of North Africa was 
swallowed up together in the rising flood of Islam. It is 
interesting to remark that, in spite of the pronouncements 
to which we shaU immediately refer, the custom of 
death-hastening reappeared among the Christians in 
the sect of the Albigenses in the twelfth and thirteenth 
centuries.' 

But now at length the time was coming when the 
Church was to denounce the practice which the excesses 
of the fanatics had forced on its consideration. 

In the beginning of the fifth century, the fiery Bishop 
of Hippo sent forth his book « (written from 413-426), 
in which he most uncompromisingly condemned all 
suicide. " La reprobation," says F^lix Bourquelot, 

1 Smith and Wace, Dictionary of Christian Biography, vol. i. p. 882. 
London, 1877. 

2 Gibbon, ch. xxi. 

2 Smith and Wace, art. " Donatism." 

* Donne, BIAGANATOZ, p. 69. 

s Sir N. Harris Nicolas, Chronology of History. 

« Gibbon. 

' Lecky, Hist. Mor. vol. ii. p. 49. 

• St. Augustine, De Civitate Dei, lib. i. c. xvi. 



282 A HISTORY OF PENAL METHODS 

" manifestee par I'Eglise Chraienne centre le suicide se 
trouve pour la premiere fois formulee d'une manifere 
absolue et dogmatique dans las ecrits de S. Augustin ; " ' 
and, as M. Lisle observes, " C'est en effet quelques annees 
seulement aprds la publication de la ' Cite de Dieu,' que 
nous voyons I'Eglise Chretienne s'occuper poiir la premiere 
fois de cette question delicate," and from this time, what 
even Christian writers have called " the dark shadow of 
Augustine " ' spread over the Catholic world for many 
centuries. We shall find presently that his influence, 
increased no doubt by the reaction against the frenzied 
sects of which we have just spoken, led the Church far 
into the opposite extremes, notions that will now appear 
to many scarcely more sane and sensible than the wild 
ravings of the Circumcelliones ! 

A case involving the suicide of a woman appeared before 
the Synod of Ancyra as early as a.d. 314, since " A certain 
person who had betrothed himself to a girl, had connection 
with her sister so that she became pregnant ; he then 
married his betrothed, and his sister-in-law hanged her- 
self. . . . All parties were condemned to long periods of 
penance, but nothing would seem to have been said about 
suicide specially."' 

Lecky has told us that " a council of Aries in the fifth 
century • . . . pronounced suicide to be the effect of 
diabolical inspiration," and Lisle also refers to that 
Council's proceedings.'' 

But the 53rd Canon ' dealt only with those cases where 
servants had been provoked to slay themselves in order 
to bring trouble upon their masters, a method of reprisal 
well known in China and all the East. 

More definite condemnation was to come later. In 
533 a Council of Orleans (15th Canon) forbade the ac- 

<■ Bibliothique de I'Ecole des Charles, torn. hi. and iv. 
2 Dean Farrar, Eternal Hope, p. 167, and see his remarks, p. 65. 
' Vide the 25th Canon, and Bishop Hefele, History of Christian 
Councils, vol. i. p. 222, W. R. Clark's ed. Edin., 1871. 

* Hist. Mor. ii. p. 50. 

^ E. Lisle, Du Suicide, p. 396. 

• Vide ConcUium Arelatense, ii : " Si quis famulorum cujuslibet 
conditionis aut generis, quasi ad exacerbandam domini distinctionem, 
se diabolo repletus furore percusserit ipse tantum sanguinis sui reus 
erit, neque ad dominum sceleris alieni pertinebit invidia," — Mansi, 
torn. vii. p. 884. 



CLASSIFICATION OF CRIMES 283 

ceptance of oblations for suicides, while permitting them 
for those killed in the commission of crimes.' 

But in A.D. 563 the Council of Braga refused to allow 
religious services over the body, and ordered that no 
masses should be said for the soul of a suicide.' This 
Canon, depriving the dead of funeral rites, was a direct 
and emphatic condemnation of self-willed death. 

The Council of Auxerre ' in 578 again forbade the 
acceptance of the oblations of suicides, but stiU the 
condemnation of self-destruction appears to have been 
temperate in those early times, for we find the 4th Canon 
of the Council of Toledo • (a.d. 693) punishing the attempt 
with only two months' exclusion from fellowship. 

But later the Church's attitude became more severe ; 
in 878 the Council of Troyes • ordered that the bodies of 
excommunicated persons, suicides, etc., should not be 
granted Christian burial . 

In 866 Pope Nicholas, in his reply made to the newly 
Christianised Bulgarians, prescribed that the body of a 
suicide was indeed to be buried, lest it injured the living ; 
but no sacrifice was to be offered — for who, he asked, had 
more fully committed that sin unto death which was not 
to be prayed for, than he who imitated Judas, and, with 
all approbation of the Devil his master, became his own 
murderer ? ' 

Towards the end of his reign, St. Louis, king of France 
(a.d. 1215-1270),' ordered the confiscation of the property 

^ C. Aureliajise, ii : " Oblationes defunctorum, qui in aliquo crimine 
fuerint interempti recipi debere censemus. si tamen non ipsi sibi mortem 
probentur propriis manibus intulisse." — Mansi, torn. viii. p. 837. 
Florence, 1762. 

^ C. Bracarense, i6th Canon : " Item placuit, ut hi qui sibiipsis aut 
per ferrum, aut per venenum, aut per praecipitium, aut suspendium, 
vel quolibet modo violentiam inferunt mortem, nulla pro illisin oblatione 
commemoratio fiat, neque cum psalmis ad sepulturam eorum cadavera 
deducantur : multi enim sibi hoc per ignorantiam usurpaverunt. Simi- 
liter et de his placuit, qui pro suis sceleribus puniuntur." — Mansi, 
torn. ix. p. 779. Florence, 1763. 

3 C. Autisiodorense, 17th Canon. Vide Mansi, torn. ix. p. 913. 

* C. Toletanum : Mansi, tom. xii. p. 71 ; and see Hefele, vol. v. p. 245. 
» C. Tricassinum: Mansi, tom. xvii. p. 349 ; also Bourquelot, p. 554. 
' Vide Migne, Patrologite, tom. cix. p. 1013. Ad Consulta Bul- 

garorum, Bourquelot, p. 555. 
A. Legoyt, Le Suicide, p. 104. Pciris, i88i. 
Moore, vol. i. p. 301. 

* F. H. Perry-Coste, The Ethics of Suicide, p. 31. London, 1898. 



284 A HISTORY OF PENAL METHODS 

of suicides' in addition to the ecclesiastical penalties 
already imposed/ But by this cruel edict he was only 
applying and extending to them the truly barbarous 
criminal laws of the olden time, by which the goods of 
convicted prisoners — and in some cases the lives and 
limbs of their relations too — were declared forfeited to the 
avenging State.' The Church confirmed the canons as 
to refusing burial, etc.,* at the Synod of Nimes in the 
year 1284.' But other and non-Christian creeds had 
turned their thunders against self-destruction. 

Ages before the period of which we have just been 
speaking, the Magi, or priests of Persia, had forbidden it, 
and suicide is, according to the Zoroastrian religion, " one 
of the most horrible crimes, belonging to the class of 
marg-arzan or deadly sins. And when,' in the seventh 
century, the soldiers of Mahomet broke up the Persian 
power and drove the remnant of the Zoroastrians head- 
long into India, they continued to hold the sinfulness of 
suicide, already formally condemned by the new creed, 
straitly forbidden in the book of the Koran.' 

Thus from the seventh century onwards suicide had 
come to be condemned by the religious systems of the 
West and East, and besides the terrors threatened in 
the world to come, the most cruel and revolting penalties 
were laid upon the senseless body, and, what was more 
important, also on the nearest relatives. But suicide, 
being an instinct in man's nature, could not be put down 
by fear. It is indeed asserted to have become com- 
paratively rare, or at any rate to haVe become concealed 
and shameful.' But it did not cease, and was well known 
even in the monasteries as the result of intense melan- 

1 See Abbe de St. Martin, Etablissements de Saint-Louis, ch. Ixxxviii. 
Paris, 1786. 

2 Lisle, Du Suicide, p. 403. 

' For the Roman law see Dr. W. Smith's Gibbon, vol. v. p. 326. 

• For some English cases previous to the passing of the Forfeiture 
Act, 1870, see Mews' Harrison's Digest, vol. ii. p. 1798. London, 1884. 

5 Mansi, Sacrorum Conciliorum, tom. xxiv. p. 546. Venice, 1780. 

• Haug, Religion of the Parsis, edited by E. W. West, p. 313, note. 
London, 1884. 

^ For their strange notions as to the pollution of the elements by 
the disposal of dead bodies, etc., see G. Rawlinson's Religion^ of the 
Ancient World, p. 116. London, 1882. 

' See Rodwell's translation of Sura, iv. 33, on p. 534. London, i86i. 

• Bourquelot, tom. iii. p. 555. 



CLASSIFICATION OF CRIMES 285 

choly,' which was called acedia, which was the frequent 
outcome of ascetic life. 

The probability is that, like all passion-actions thought 
to be " stamped out," it was merely driven under the 
surface, hushed up in the great families where possible, 
smoothed over and explained away (although the bitter 
hostility of the priest in Hamlet doubtless reflects the 
spirit of the time), and Legoyt remarks that many bodies 
were constantly come upon who left no trace of their 
identity or means of death,- showing that the more sane 
and deliberate of these unhappy people wandered away 
and died in secret, risking their souls, according to 
theology, but saving their homes and kindred from ruin 
and from persecution.' The Continental Canons are said 
to have been extended into England in 673 at the Council 
of Hertford.* A little later in the seventh century we 
find the rules for the interment of suicides laid down, 
with more charity and discrimination than was usual, 
in Theodore's Penitential, under the heading " De Vexatis 
a Diabulo." ° The possessed (or madman) was to be 
prayed for after death if he had previously been religious. 
If he had killed himself from desperation, fear, or from 
some cause unknown, the matter was, said the archbishop, 
to be left in the hands of God — they dare not pray for 
such an one. 

Egbert, Archbishop of York (734-766), is said also to 
have decreed that if any one killed himself at the instiga- 
tion of the devil, no masses should be«said for him, etc' 
In 963 we find that in the Penitential Canons attriljuted 
to Dunstan it was ordered " that if a man wilfully kill 
himself with a weapon, or through the instigation of 
the devU " — that old and ready way of accounting for 
things ! — " it was not allowed to sing masses for such an 
one, nor that his body be committed to the earth with 
psalmody, nor that it be buried in a holy place ; the same 
doom belongs to him that loseth his life as a punishment 

' Bourquelot, torn. iv. p. 250. 
^ Le Suicide, p. iii. Paris, 1881. 
3 Moore, A Full Inquiry, i. p. 307. 
* O'Dea, p. 124. 

« Haddon and Stubbs, Councils and Documents, vol. iii. p. 197. 
Oxford, 1 87 1. 
' Moore, A Full Inquiry, i. p. 307, etc. 



286 A HISTORY OF PENAL METHODS 

for his crimes; that is the thief, and murderer, and 
traitor to his lord." ' In the reign of King Edgar » the 
suicides were classed at law with criminals.' 

According to Bracton,' \yho wrote in the thirteenth 
century, those who committed suicide to escape con- 
viction were considered, as by the Roman law, to have 
been guilty of the previous offence. In the case of 
ordinary suicide the movable goods were confiscated to 
the Crown, but not so in the case of the insane. For 
centiuries the unreasoning and exaggerated attitude 
adopted by the Church from the time of Augustine 
prevailed in England and throughout Europe ; and though 
in the fourth century St. Martin of Tours is related to 
have restored a suicide to life,' yet, in the latter Middle 
Ages, it seems to have been regarded as a very special 
and unpardonable sin when dealt with from the Christian 
standpoint. The spirit of the period was well exemplified 
at the trial of the Marquise de Brinvilliers in 1676, when 
the presiding judge said to the prisoner " that the greatest 
of all her crimes, horrible as they were, was not the 
poisoning of her father and brother, but her attempt to 
poison herself." ' 

Indeed, it would really seem as if the anger of men 
against one who sought death equalled the extent of 
their absolute powerlessness in the matter ! Yet the 
body at least was left behind to be abused and mutilated, 
and was mauled and disfigured with a degree of wanton 
barbarity no naked savages could ever have surpassed. 
And when, in time, burial of any sort came to be allowed 
for the convenience of the living, it evolved into a ceremony 

'■ J. Johnson, Laws and Canons of the Church of England, vol. i. 
p. 433. Oxford, 1850. 
2 O'Dea, p. 124. 
^ Strahan, p. 198. 

* De Legibus, edited by Sir T. Twiss, vol. ii. p. 507. London, 1879. 
' Sulpicius Severus, De Vita S. Martini, ch. vi. 

• Funck-Brentano, Princes and Poisoners, p. 75, edited by G. Maid- 
ment. London, 1901. 

"... The experience of all ages and nations shows that the im- 
material motives are frequently far stronger than the material ones, 
the relative power of the two being well illustrated by the tjTaimy of 
taboo in many instances, called as it is by different names in different 
places. It shows how, in most parts of the world, acts that are appar- 
ently insignificant have been invested with ideal importance, and how 
the doing of this or that has been followed by outlawry or death.'' 
Francis Galton in Sociological Papers, vol. ii. p. 9. London, 1906. 



CLASSIFICATION OF CRIMES 287 

even more horrible in its ofl&cial form than the excesses 
of the brutal rabble. All reverence for the presence of 
death, all compassion for the feelings of the moiirners, 
all sense of justice for the absolutely innocent, appears 
to have been set at nought before the ghoulish orgies 
that ensued. The Church, as we have seen, refused to 
receive the body within its pale ; the corpse was buried 
at the junction of four roads. ^ An entire chapter, if not 
a separate volume, could well be written about this strange 
and very obscure custom of cross-road burial. I have a 
mass of notes upon the subject, but am content to follow 
Professor Westermarck," who suggests that it was due 
to the superstition that, at these places, the malign 
influence exercised by such bodies would be diffused 
abroad and so rendered harmless. As possibly throwing 
some finrther light upon the origin of this notion, we may 
remember that persons who had perished by sudden 
violence have always been alleged and expected to 
occasion all sorts of mysterious and terrifying phenomena. 
We cannot, I fancy, altogether disregard the world-wide 
evidence which has accumulated for centuries in support 
of the existence of ghosts, or what pass for them. But 
what the things seen or imagined, actually are — whether 
they are objective, subjective, self-conscious, or mere 
impressions that have been in some way fixed round the 
localities where events took place — cannot be discussed 
here. 

To such a place the corpse was brought and shot into 
a hole, and then a stake was driven through the body to 
pin it down and keep its ghost from " walking " ! This 
was the form of burial for our dear brothers and sisters 
departed, prescribed in civilized England as late as 1823.' 
In that year it was enacted that the body of a suicide 
should be buried privately between the hours of nine and 
twelve at night, without religious rites. This remained 
law till 1882, when it was decreed that the body might be 
buried at any time and with such service as the person 
in charge of the funeral might think fit and could procure.* 
As regards interment, therefore, there now remains no 
longer any grievance. But even worse than the dese- 

' Suicide, p. 199. " Moral Ideas Jvol. ii. p. 256. 

^ Strahan, p. 199. • Strahan, p. 200. 



288 A HISTORY OF PENAL METHODS 

cration of the dead was the monstrous spoliation of 
the innocent relations. In this we possess yet another 
instance of the instinctive nature of all punishment: 
the body, so stiff and rigid in its mute defiance, was too 
removed to receive cruelty ; the blow descended better 
on the wife and children. 

Mr. Moore, the eighteenth-century clergyman from 
whom I have already quoted, with that perversity which 
we so often notice when reason strikes against prevailing 
prejudice, and, in such natures, crumples up before it, 
quiets his conscience with the following remarks : " It 
is not the law," he says, " which in this case acts unjustly 
to the family of a suicide . . . but the self-murderer himself 
who is thus atrocious and cruel to his nearest connections. " ' 
I have met with this sort of argument in much more recent 
times, but I prefer the spirit of Voltaire's scathing com- 
mentary when he said that they punished " the son for 
having lost his father, and the widow for being deprived 
of her husband." " They take away," he wrote, " the 
goods of the departed, which is practically to snatch 
away the means of the survivors to whom they belong." ^ 

A notable historical instance of the Crown confiscation 
of goods is left us in the case of Sir James Hales. Being 
committed to prison for having, as a judge, taken action 
against some Catholics in the beginning of Queen Mary's 
reign, he lost, apparently, his mental balance, and very 
nearly took his life in prison by opening his veins. How- 
ever, he was not treated badly by the Government, but, 
being presently released, he went and drowned himself 
in a shallow stream near his estate in Kent in 1554.' A 
jury having found that he had voluntarily destroyed 
himself at the instigation of the devil — for he was un- 
popular at court just then, and they were not likely to 
allow him the benefit of a verdict of insanity — the Crown 
made claim on all his goods and chattels. But it was 
held that neither his wife's dower nor yet freehold lands 
were liable to forfeiture, nor was the blood to be corrupted,* 
as there was no attainder, and there could be none since 

1 A Full Inquiry, p. 321, note. 

2 Bourquelot, iv. p. 474. 

3 Holinshed, Chronicles, vol. iii. p. 1092. London, 1587. 

' Plowden's Cowwewianes, " Hales 0, Petit." London, 1578, Edition 
of 1 8 16, pp. 260, 261a. 



CLASSIFICATION OF CRIMES 289 

the man was dead. The various possessions, amongst 
which were some leasehold lands, were handed over to 
one Csnriac Petit, against whom Margaret, Lady Hales, 
brought an unsuccessful action early in the succeeding 
reign. A variety of legal subtleties, dear to a lawyer's 
mind, were then advanced by counsel on both sides, and 
the whole trial may be read with interest. 

The king, it seems, had claim to compensation for the 
loss of a subject, and for the breach of his peace.' In 
those Protestant times we hear less of the Church ; but 
the act was classed as being murder, and not homicide 
or manslaughter, and Lord Dyer stigmatised it as " an 
offence against nature, against God, and against the 
king . . ." The same idea is to be found at a much later 
period in Blackstone, who speaks of the double offence — 
one spiritual, as evading the prerogative of the Almighty ; 
the other temporal, against the king, who hath an interest 
in the preservation of his subjects, etc.^ 

But the people, who are always, as individuals, better 
than the law, shrank all along from beggaring the mani- 
festly innocent, and avoided a Verdict oifelo de se whenever 
it was possible for them to do so ; and even to-day what 
has been called the " amiable perjury " of " temporary 
insanity" is continued in cases where the same twelve 
men would undoubtedly convict had the deceased, in life, 
been guilty of some serious offence. 

Actual confiscation had been a sort of defunct legal 
monstrosity long before the passing of the Act (33 & 
34 Vict. c. 23), in 1870, by which all forfeitures were done 
away with; henceforth no felon's property could be 
escheated "to the Crown. The stake, the cross-roads 
burials, and the vampire superstition, have passed away 
into the horrors lumber-room of history ; but the harsh 
law against attempted suicide is still in force in 1903, 
and remains one of those semi-theological anachronisms 
which make the Continental nations wonder at our ways. 
Less than a generation ago a prison chaplain referred in a 
monthly review to " this form of murder, which is often 
more cowardly and less frequently followed by real 
penitence than those forms of the offence which are 
expiated on the scaffold," and advocated the then utterly 

1 Plowden's Commentaries, pt. i. p. 261. * Bk. iv. ch. xiv. 

19 



290 A HISTORY OF PENAL METHODS 

brutalising punishment of hard labour for the miserable 
creatures to whom the world already seemed unbearable. 
And in a work on suicide from which I have quoted, and 
which was written a few years later, there occurs the 
amazing statement that "to murder a mother or a 
daughter is as much repugnant to a sensible man as to 
murder himself." It is difficult to imagine how in any 
age absurdity could go further than to present the matter 
in this diseased and much-distorted way. 

In practice, it is probable that this law does but little 
harm ; no resolved mind fixed on the desperate end of 
self-destruction would for a mbment care what men might 
say or do. And in spite of the many cranks who swarm 
about at large, and band themselves into societies,^ 
attempted suicide is not regarded even by the laws as 
an attempted murder,^ and in the great majority of cases 
the unfortunate people, though placed in the dock, are 
taken care of, and are handed over to their friends or to 
some institution, and are not looked upon by most of us 
as being really criminals at all.' But this is not always 
the case, for there are cranks and cruel people in high 
offices, and we occasionally find severe sentences, such as 
are (or, rather, very often are not) inflicted for brutal 
assaults and deliberate cruelty, passed upon people who 
have injured no one nor violated any living thing's con- 
sent. Thus an imfortunate woman who had previously 
been insane received (according to the official tables ♦) 
the maximum sentence of two years for attempted suicide, 
and was some time later removed again to an asylum 
from the gaol in 1898. 

This case was absolutely scandalous ; but sentences 
of from six to twelve months, for failure to accomplish 
an act which is not punishable when completed, are by 
no means unfamiliar to those who read and study the 
reports of circuits. And though such sentences are of rare 
occurrence (yet not one whit the less unfair for that), we 
hear almost day by day of some unhappy brokenhearted 
creature, whom the rough world has driven to despair, res- 
cued, perchance, from what seemed certain death, dragged 

1 Strahan, p. 201. » Mews' Harrison's Digest, vol. ii p. 2065. 

' See article, Spectator, March 16, 1889. 

* Report of the Commissioners of Prisons for 1899, p. 124. 



CLASSIFICATION OF CRIMES 291 

to a felon's cell, locked up and caged, as though accused 
of theft or cruelty. The principle of these sort of laws is 
unjust ; they are an outrage upon personal liberty, and, as 
such, were overthrown at the great French Revolution.' 

I have devoted so large a portion of this chapter to 
the story of suicide chiefly because a principle of justice 
seemed to be involved,' and also hoping it may teach us 
certain things. It appears evident that peoples could 
not reason, that local circumstances and the twists of 
teaching have given extraneous colours to men's thoughts, 
even as tinted glass imparts them to the sunlight. I 
think it may be admitted without prejudice that suicide 
has been looked up to as a crowning virtue, loathed and 
denounced as if the worst of crimes. Many people will 
hold that it may indeed sometimes be cowardly, often 
rash and foolish, always a desperate and most irrevocable 
step. But to all those who believe in liberty, it must 
remain a personal and self-regarding act, a matter for 
each one's conscience, not for courts of law.' The solemn 
passage of a human soul from this world to Eternity is 
not a scene on which we should intrude. 

The world-old phenomenon of what is now known as 
sexual inversion is difficult to discuss, but obviously 
impossible to omit in any work on criminology in the 
present state of the law in England. 

Mr. Stead, whose zeal for militant morality has had so 
much effect on legislation, justly expressed the problem 
when he wrote : "It may be alleged that such problems 
should not be discussed, and that the whole question 
should be buried in impenetrable silence. The answer 
to this is, that if the legislator makes one theory of the 
psychology of sex the basis for passing a law which sends 
citizens to penal servitude, it is impossible to shut out 
such a theory from public discussion." Impossible, of 
course, in the long-run. 

1 O'Dea, p. 280. 

2 For that the ethical, like the legal code of a people, stands in need 
of revision will hardly be disputed by any attentive or dispassionate 
observer. The old view that the principles of right and wrong are 
immutable and eternal is no longer tenable."— J. G. Fraser, Taboo, 
and the Perils of the Soul, p. vi. London, 191 1. c. . -j 

' See F. H. Perry-Coste's thoughtful essay. The Ethics of Smctde. 
London, 1898. 



292 A HISTORY OF PENAL METHODS 

The sexual inverts may be compared to the left-handed. 
They are indeed always a minority in every population, 
but an eternal minority which neither laws nor even 
religious systems have ever altogether swept away.' 
And as in the case of the illegitimate, whom the State 
has also refused to recognise, the names of some of them 
are written for all time in the world's history." 

But even as we saw in the case of suicide, the per- 
plexing but primordial homogenic instinct has had a 
most amazing history, ranging in the course of cen- 
turies from a religious cult and form of consecration » 

1 See Lecky, Hist. Mor. ii. 329. The curious writings of St. Peter 
Damiani in Migne, Patrologiae, torn. cxlv. p. 1 59. H. C. Lea, Sacerdotal 
Celibacy, p. 86, etc. W. L. Mathieson, Politics and Religion in Scotland, 
i. 189. J. L. A. Huillard-BrehoUes, Hist. Dip. : Frederici Secundi, p. cxci. 
Paris, 1859. J. McCabe, The Bible in Europe, p. 303. London, 1907, 
J, Cotter Morison, The Kingdom of Man. ch. vi., "Morality in the 
Ages of Faith." J. Bingham, Antiquities of the Christian Church, 
vol. vi. p. 432, etc. J. Janssen, IJist. of the German People at the Close 
of the Middle Ages, A.M.. Christie tx3.xta. vols. v.a,rx6.\i. F. M. Nichol's 
Epistles of Erasmus, p. 44. Casper Wirz, De Uranier voor Kerh en 
H. Schrift, Dutch trans, by A. P. Tierie. Amsterdam, 1904. £. R. 
K. Geestelijke, Bibel und Uranismus. 

2 Many accounts of the lives and eccentricities of great men arc 
given in VIntermidiaive des Chercheurs et Curicux, W. C. Rivers, Walt 
Whitman, Letters of Michael Angelo, etc. 

DoUingor, ii. p. 274. Albert Moll, Etude, ch. ii. 

3 (i) See St. Jerome's Commentary on Hosea, iv. 14, in Migne 
Patra/ogiae, tom. XXV. p. 851. Paris, 1845. (2) The Bible. See F. c' 
Cook's Commentary on i Kings xiv. 24, vol. ii. p. 571. London, 1872! 
The same on Hosea iv. 14 in vol. vi. p. 435. London, 1876. (3) 
Alexander's Kitto's Cyclopaedia of Biblical Literature, vol. iii. p. 865, 
London, 1846. (4) Hackett's Smith's Dictionary of the Bible, vol iv' 
p. 3073- New York, 1870. (5) W. Wilson's Clement of Alexandria, 
ch. u. p. 40. Ante-Nicene Library, vol. iv. Edinburgh, 1867. (6) R, 
Payne Knight, The Symbolical Language of Ancient Art, p. 174 New 
York, 1876. (7) Piexj:&X)\iio\ir,HistotredelaProstitution,ixira i p 71 
Brussels, 1851. (8) J. A. Dulaure, Hist. Abrigi de Diffdren's Cultes, 
torn. 1. p. 419 etc. Paris, 1825. (9) L. Maury, Hist, des Religions 
de la Grice Antique, tom. ni. Paris, 1857. (10) J. McCabe, St. Augus- 
tme p. 26 London, 1902. (11) J. F. MacLennan, Studies in Ancient 
History, ch. vn. p. loi. London, 1896. (12) C. R. Markham, Trans, 
of Royal Commentary of the Yncas, i. p, 59. (13) H. H, Bancroft, 
Natwe Races of the Pactfic, u. p. 677. (14) J. 6. R. Forlong, Rivers 
of Life, 1. ch. m London, 1883. (15) The Open Court (Chicago), 
March 1901. (16) J Bonwick, Egyptian Belief, p. 255, etc. London, 
p/r^ ^'J^ J. Rosenbaum, The Plague of Lust in Classical Antiquity. 
S !,' ^«- ^i}^l Jabelon, Orzgin of Religion. London, 1902. (19) 
Hodder M. Westropp, Primitive Symbolism. London 188? ho) 
Pocock 3 Grotius, lib. ii Oxford, 1660. (21) E. B. Pussy, Letters of 
St.Ambrose,p. 411. A few of the above have been included as beating 
on tiie larger subject of PhalUc worship, but about half refer exprewly 
to the Galh, or Efiemlnati, frequenting the ancient temples ^ " 



CLASSIFICATION OF CRIMES 293 

to a crime which mankind refused almost to recog- 
nise as being possible.' It has been present in all 
ages and places throughout the Old World ' and the 

New.' 



1 The origin of this has often been ascribed to the influence of Chris- 
tianity : see Paley, Evidences, Part iii. ch. vii. ; Lecky, Hist. Mor. ii. 
p. 331. "All Christian legislation on this subject is simply an applica- 
tion and amplification of the Mosaic Law as recorded in Exodus xxii. 19 
and Leviticus xx 13-16, just as the cruel persecutions and prosecu- 
tions for witchcraft in mediaeval and modern times derive their 
authority and justification from the succinct and peremptory command 
Thou shalt not suffer a witch to live." — E. P. Evans, Punishment 
of Animals. But there have been from time to time also non-Christian 
measures of attempted repression — as, for instance, by Solon (B.C. 638- 
559) as regarded the slaves only, and by the Roman Scantinian 
Law of the third century B.C., wliich imposed a fine in the case of 
free men (see Darnell's Dollinger, ii. 274. Giles's Lempriire's Clas. 
Diet. p. 864, and W. Smith's Diet. Greek and Roman Biography). In 
the third century a.d. Alexander Severus made some severe laws 
(Lecky, Hist. Mor. ii. 311). The offenders were, at least legally, 
liable to strokes of the bamboo under the Chinese code. But no 
distinction as to sexes is made, Mr. Alabaster observes : " such 
offences are regarded as, in fact being less hurtful to the community 
than ordinary immorality" [Notes and Commentaries on the Chinese 
Criminal Code, p. 369. London, 1899), and were condemned by the 
Zoroastrians. They are said to have been savagely punished by the 
Incas before their overtlirowal at the Spanish conquest. 

2 This statement might be supported indefinitely, but see, for 
instance : Albania. J. G. von Hahn's Albanesische Studien, vol. i. 
Arabia. K. F. Buiion, Arabian Nights, vol. :k. Asia. Dollinger, TAe 
Gentile and the Jew, ii. p. 238 ; Darnell's trans. London, 1862. 

F. Karsch-Haack, Gleichgeschleohtliche Leben der Ostasiaten, Munchen, 
1906. Australia. E. T. Hardman, Proceedings of the Royal Irish 
Academy, third series, vol. i. p. 74. Dublin, 1889-9:. China. J. F. 
MacLennan, Studies in Ancient History, ch. vii. A Krauss, Die 
Psychologic des Verbrechens, Tiibingen, 1884. P. Mantegazza, Gli 
Amori degli Uomini, eleventh edition, i. 277. Huns. Th. Ribot, The 
Psychology of the Emotions, -p. 2sg. London, 1897. Japan. A.Moll, 
Etude sur Vlnversion Sexuelle, French trans, from the German by 
Pactet and Romme, p. 58. Paris, Carr6, 1893. Kamschatka. Said 
to be alluded to in G. Klemm's Cultur-Geschichte, ii. 207. Mada- 
gascar. Zeitschrift fUr Ethnologic, i. 1S69. New Caledonia. M Folov, 
Bultn. Soc. d'Anthrop. de Paris, 1879. Normans. E. A. Freeman, Uiut. 
of William Rufus, i. p. I S9. Oxford, 1882. North American Indians. 

G. Catlin, ii. p. 214. London, 1876. Persia. J. S. Buckingham's 
Travels. Samarkand. Emperor Baber's Memoirs, J. Leyden's trans- 
lation, p. 26, etc. London, 1826. South Sea Islands. JohnTumbuU, 
A Voyage Round the World, p. 382. London, 1813. James Wilson, 
A Missionary Voyage, -p. z^i. London, 1799. Tchukchis. E. Demidoff, 
A Shooting Trip in Kamchatka, p. 74. London, 1904. Turkey. W. 
Eton, Turkish Empire. London, 1799. B. Stem, Geschlechtsleben 
in der TUrkei. BerUn, 1903. S. Purchas, His Pilgrimes. London, 
1625. 

» This is instructive, for neither Classical nor Oriental influences 



294 A HISTORY OF PENAL METHODS 

But apart from this direct evidence, which does not, 
of course, pretend to be in any way exhaustive or com- 
plete, we may feel certain that this passion has to some 
extent always been present, however much discoun- 
tenanced and driven under ground. Travellers, and 
especially missionaries and their publishers, are very 
reticent, besides, as Lubbock ^ has shown, often falling 
into excessive errors in their struggles with the languages. 
But in the absence of positive accounts, and even in 
the face of absolute denial, we may feel as sure of 
the existence of the homogenic attraction as of the 
presence of disease in every community, from a friori 
reasoning. 

Because it is an innate instinct, and every real instinct 
is older than the pyramids.* 

And while it was strangely systematised in many of 
the mightiest civilisations of the past into an institution,' 

can have reached the indigenous peoples and civilisations of America 
before the advent of the Spanish conquerors. 

See Garcilasso (or Lasso) de la Vega, Royal Commentaries of the 
Yncas. C. R. Marckham's trans, of the seventeenth-century Spanish. 
London, 1869. 

H. H. Bancroft, The Native Races of the Pacific, i. 585, 635, 773 ; 
ii. 337, and as regards even the pre-Toltec period, v. 198. New York, 
Appletons, 1875. 

J. F. MacLennan, Studies, ch. vii. 

P. Mantegazza, Gli Amori degli Uomini. Milan, 1892. 

Bernal Diaz, Hist, de la Conquite de la Nouvelle Espagne, trans, into 
French by D. Jourdanet, first edition, ii. 594. 

Langsdorf, Voyages and Travels, pt. ii. 47, 18 14. 

J. F. Lafitau, Mceurs des Sauvages, torn. i. p. 603, etc. Paris, 1724. 

' Origin of Civilization. 

' See Herbert Spencer, Contemp. Rev. February 1893. 

' (i) C. O. Miiller, History and Antiquities of the Doric Race, Tufnell 
and Lewis's ed., book iv. p. 306. Oxford, 1830. (2) G. Cox, General 
History of Greece, p. 574. London, 1876. (3) W. Mure, Language and 
Literature of Ancient Greece, vol. iii. p. 315. London, 1850. (4) J. A. 
Froude, Lives of the Saints, p. 222. (5) G. Grote, Plato, ch. xxvi. 
Phaedrus-Symposium. (6) J. A. Symonds, In the Key of Blue, p. 55. 
London, 1893. (7) 'E.F.M.Beaecke, Women in Greek Poetry. London, 
1896. (8) J. A. Symonds, A Problem in Greek Ethics. {9) G. L. 
Dickinson, The Greek View of Life. (10) Edward Carpenter, Civilisa- 
tion. (11) C.H.Fea.TSon, National Life and Character, ■p. 1Z6. London, 
1893. (12) DoUinger, Darnell's trans, ii. p. 275. (13) J. A. Symonds, 
Contemp. Rev. September, 1890. (14) Bishop Thirlwall, Greece, i. 176. 
(15) Edward Carpenter, /o/oMi. London, 1902. (16) E. von Kupfler, 
Lieblingminne und Freundesliebe in der Weltlitteratur. Eberswalde, 
1900. (17) P. van L. Bouwer, Histoire de la Civilisation des Grecs, 
1833-42. (18) M. H. E. Meier, in Ersch and Gruber's Encyclopaedie, 
art. "Paderastie." Leipzig, 1837. (19) J. W. Mackail, Gj-eeft .4»tto- 



CLASSIFICATION OF CRIMES 295 

and continually confronts us throughout almost the 
entire range of Greek and Roman literature,' it is to be 
found in rude and primitive conununities ' where Rome 
and Athens are unloxown names." 

A deep, inevitable impulse could never, of course, be 
penalised out of existence, but it is remarkable that an 
instinct which, at first sight, seems unfunctional and self- 
destructive should have persisted from the beginning, 
apparently regardless of the laws of natural selection and 
elimination. At the same time it appears as though 
only the more extreme examples of hermaphroditism 
were really incapable of affecting the birth-rate, and in 
the insect kingdom * — we find remarkable instances of 
the perpetuation of creatures not individually sexual and 
repiroductive.' 

Still it is evident that we do not yet know much about 
the cause of these sort of phenomena, for while the 
manifestations of passionate attraction, both of the true 
homosexual instinct • and of the venal, substitutional, 
and acquired vices which have often gathered round it, 
have been visible from the begiiming, it is only within 

logy, P- 36. London, 1890. (20) E. Bethe in Buecheler and Brink- 
mann, Rheinisches Museum fUr Philologie, Band 62. Frankfort, 1907. 

* See for instance : — 

1. Plutarch. Morals, ed. by A. R. Shilleto. London, 1888. 

2. Athenaeus, ed. by C. D. Yonge, vol. iii. London, 1854. 

3. Xeno.phon, Minor Works, ed. by J. S. Watson, Government of 
Lacedaemon, ch. u. London, 1884. 

4. Lucian, Amores, The Athenian Society, 1895. 

5. Maximus Tyrius, T. Taylor, trans. London, 1804. 

6. Commentary on Catullus, by Robinson EUis. Oxford, 1889. 

» The learned theologian. Dr. DolUnger, observed that the degree of 
civilisation a people had attained to, might qualify the form but not 
the substance of the matter. — The Gentile and the Jew, ii. 238. London, 
1862. 

3 See Letoumeau, Sociology, H. M. TroUope's trans, ch. iv. p. 71- 
London, 1893. 

A. Bastian, Der Mensch in der Geschichte. Leipzig, i860. 

Edward Carpenter, Die Homogene Liebe. German trans, by H. B. 
Fischer. 

Edward Carpenter, An Unknown People. London, 1897. 

F. Karsch, Uranismus bei den Naturvdlkern. 

H. Ploss, Das Weib. Leipzig, 1884. 

* See J. Lubbock, Ants, Bees, and Wasps. London. 1872. 
6 M. Maeterlinck, The Life of the Bee. London, 1901. 

* Speaking of which Professor Mantegazza says " non 6 un vizio, 
ma una passione," Gli Uomini, i. 5. And see William James, The 
Principles of Psychology, vol. ii. p. 439. London, 1890. 



296 A HISTORY OF PENAL METHODS 

very recent times that the strong achromatic lens of 
Science has been turned upon them. Only towards the 
end of the century we have just left has it been possible 
to let in light upon this melancholy subject, so that we 
may hope some day to make a real advance in dealing 
with the question. " Where you meet a social problem," 
said Henry George, " there you will find a social wrong 
at the bottom of it." We have yet far to travel towards 
truth, and, as Vesalius found in the sixteenth century, 
there are indeed many obstacles, both natural and 
artificial, placed in the way of new lines of research which 
criticise the treatment of a tabooed subject, and one 
" round which superstition, myth, and pseudo-morality 
have entwined themselves closer, perhaps, than round 
any other." ' 

All through the periods of ignorance the mad were 
placed within the province of the priest ; equally hope- 
lessly, the unfortunate inverts have been left to the 
policeman. Not tUl the last part of the nineteenth 
century did Science dare to look into the question. Pro- 
fessor Westphal ' of Berlin is claimed as the first medical 
authority to undertake the work. But probably better 
known is Dr. R. Von Kraift-Ebing, whose Psychopathia 
Sexualis has gone into some ten editions ° and has been 
read all over Europe. Another important work is that 
of Dr. Albert Moll.* 

Much has been lately written,* and in many languages. 

^ E. Belfort Bax, Outspoken Essays, p. vi. London, 1897. 

Iwan Bloch, The Sexual Life of Our Time, Dr. M. E. Paul's trans. 
London, 1909. 

a In the Archiv fUr Psychiatrie, 1870. 

s A translation for naedical readers has been made into English 
(F. J. Rebman. London, 1905), and an Italian version has been pub- 
lished by Drs. Sterz and Waldhart. Turin, 1889, etc., etc. 

* Etude sur Vlnversion Sexuelle, translated into French from tlie 
German by Drs. Pactet and Romme. Paris, Carr6, 1893. 

' For instance : 

Dr. James Burnet in Med. Times and Hosp. Gazette, Feb. 3, 1906. 

Dr. C. G. Chaddock in F. Peterson and W. S. Haines, Text-Book of 
Legal Medicine and Toxicology, Philadelphia, 1903. 

Dr. R. A. Gordon in University Magazine, Jan. 1898. 

Dr. J. S. Kiernan in Detroit Lancet, 1884; Alienist and Neurologist, 
1891. 

Dr. J. Roux, Psychology of the Sexual Instinct. London, 1900. 

Dr. C. F. Lydston in Philad. Med. and Surg. Reporter, Sept. 7, 1889. 

Dr. B. Tarnowsky, The Sexual Instinct, Costello and AUinson, trans. 
Paris, 1898. 



CLASSIFICATION OF CRIMES 297 

But the most important volimies printed on the subject 
are the studies of Havelock Ellis,* for he has not abused 
his technical knowledge of bones and bowels by attempting 
to " explain " emotions which we do not understand in 
terms of pathology which we do understand, but which 
have nothing to do with the real problems at issue. 

A vast similitude underlies all. The words of the 
American seer are being verified in these latter days. 
More than anything else, recent scientific researches 
have emphasised the oneness of creation. We are 
realising the fundamental unity and the possible trans- 
mutability of all varieties of matter, the intense inter- 
relationship between the various organs, ^ and the enormous 

Prof. C. F6r6, Pathology of the Emotions. Dr. Robert Park's trans. 

Prof. A. Forel, The Sexual Question, C. F. Marshall's trans. 

John Addington Sjmionds, A Problem in Modern Ethics. London, 
1896. 

The Continental literature on the subject is too extensive to exhibit 
in detail ; the inquirer can consult the catalogues of Max Spohr of 
Leipzig ; Sauerlander of Flankfort ; Carr6 of Paris ; or the Wissen- 
schaftlich-humanitaren Komitee of Berlin. I may however allude to 
a few works picked out almost at random from many others. 

La Rousse, Diet. Universelle du xix' Siicle, under " Pfederastie." 

Lacassagne, Diet. Enc. des Sciences Midicales. 

Dr. G. Merzbach, Die hrankhaften Erscheinungendes Geschlechtssinnes . 

Dr. L. von Romer, Die erbliche Belastung des Centralnervensystems 
bei Uranien. 

Dr. P. J. Moebius, Die Wirhung der Kastration. 

R. Gerling, Das dritte Geschlecht. 

Dr. Legrain, Des Anomalies de I'Instinct Sexuelle. 

E. Miilisam, Die Homosexualit&t. 

J. von Wilpert, Das Recht des dritten Geschlecht. 

F. earlier, Les Deux Prostitutions. 

E. Bab, Die GleichgeschlechtUche Liebe. 
L. Frey, Die Mdnner des Rdtsels. 

Dr. B. Friedlander, Die Renaissance des Eros Uranos. 

Dr. M. Grohe, Der Urning vor Gericht. 

M. Hirschfeld, GeschlechtsHbergdnge. 

H. Hoessli, Die Unzuferlassigkeit des Geschlechtszeichen, 1836. 

F. von Ramdohr, Ueber die Natur. 1798. 

M. Hirschfeld, Sappho und Sokrates. Leipzig, 1902. 

H. Kaan, Psychopathia Sexualis. 1844. 

Dr. F. Chevalier, L'Inversion Sexuelle, 1893. 

Dr. P. Penta, L'Origine i la Patogenesi della Inversione Sessuale, 1896. 

Dr. Letamendi, La Criminalidad ante la Ciencia. Madrid, 1883. 

Max Dessoir, Zur Psychologic Zeitschrift fUr Psychiatric, 1883. 

Andrfe Raffalovich, Uranisme et Unisexualiti. Lyons, 1896. 

And the celebrated Jahrbuch fUr sexuelle Zwischenstufen, edited 
by Dr. Magnus Hirschfeld and published in many volumes by Max 
Spohr. 

1 The F. A. Davis Med. Pub. Co. Philadelphia, 1901. 

2 The functions of which, as K. H. Ulrichs profoundly pointed out 



298 A HISTORY OF PENAL METHODS 

power of the will and the imagination » (which, in my 
opinion, represents that which is true in Christian science) 
over the nerves and members of the body. 

And this same unity extends to sex. The division 
indeed represents specialisation of function, which nature 
had carried out in numerous directions," but not the gulf 
impassable it may appear to be.' " Males and females," 
says Professor Hcrtwig,* " whether they be more or less 
unlike, arise from the sam<; germinal material.* The 
germinal material itself is sexless, that is to say, there 
is not a male and female germinal material," and else- 
where we read: " ICvery organism . . . (apart from asexual 

(bob his Memnon, new edition, 1898, Spolir, i^oipzig), and other work* ; 
also under Numa Numantiu!>, are often dual or multiplex in action, m, 
for instance, in the caHu of the trunk or nose-hand of the elephant, 
etc., etc. Tlie sarrn; thing migiit be said of the membcri* in certain oth';r 
perfectly normal human and animal relationships. " An organ," »aid 
Darwin, " may become rudimentary for its proper purpose and be used 
for a dintinct one ; in certain <]»hcs the swim-bladder seems to be rudi- 
mentary for itM proper function of giving buoyancy, but has become 
converted into a nascent breathing organ or lung."— Onjf^« of Specie*. 
London, 18S8. Also tije " artificial " methodof swimming adopted by 
the sole and other flat-fish — see for instance J. 'i'. Cunningtiam, Treadle 
on the Common Sole, London, i«yo. And see Quarterly Review, 
July iyo2. 

' How very close is the affinity between dUferent organs and sense* 
is illustrated by the effect of an injury to one eye by " sympathy " 
upon tlie other ; and in the little-known phenomenon of colour-bearing, 
where sound amveys al»o a colour-imago, varying according to ttos 
pitch. lliis is alluded to by llavelock Kllis, Studie$, also by H. 
Croft Hilier, llere^iiiH, ii. .301, and Xibot, Pgycholop of the Emotioni, 
p. t8i, I^on'ion, 1897. Suarez de Mendoza, L' Audition Colorie, Paris, 
1890. T. Floumoy, Den Phinomines de Synopne, Geneva, 1893. 
\)T. W. S. Colman, Lancet, Mardi 31, etc., 1894. <;. S. Wake, Musical 
Tone and Colour-Music, 7896. 

" See, for instance, Demoor and Massart, Evolution by Atrophy. 
I.x)ndon, iH'j'j. 

'■> " Ihe mammary glands are the same at birth in botii sexes." 
'Itiomas Bryant, Diseanes of the Breast, p. 6. i/Ondon, 1887. 

* I'he Biological Problem of To-day, I'. C. MitchcU'i trans, p. 123, 
London, iH'jfJ. 

'' " It is coming if) be more or less widely accepted, and indeed it is 
little more than an obvious fact, that diflcrenc<;s of sex have grown 
with growing civilisation. JJeginning with a more or less undifferenti- 
ated savage masculine type of woman, who, except for primary sex 
dif/CTences, closely rewembled man in )jer bodily form and mental 
character, and a savage type of man with many womanly features, th« 
iiKj'lern womanly and manly indiv)dualitic->i have been slowly evolved," 
Dr. J. Lionel Taylcr, Sociological Paperi, vol. iii, p. 125. London, 190O. 

See also J. 1. Cunningham, Sexual Dimorphiim in the Animal 
Kingdom, p. 39. 

D. S.*Jordan, The Study of Pithet, vol. i. ch. ix. London, 1905, 



CLASSIFICATION OF CRIMES 299 

and parthenogenetic reproduction) ' develops from a 
fertilised egg-ceJl. This material, which in one case 
de\'elops into a male, in another into a female, is, so far 
as our experience can go, al\ra\'s the same." 

Moreover, we must bear in mind that beyond asexual 
reproduction.' and parthenogenesis.' and quite apart 
from freaks and malfonnations * such as ' ' free-martins • 
and mules,* yet many creatures * (ranging, for instiuice, 
as high as the sea perch) are perfectly bisexual and quite 
normally hermaphroditic,' son\e e\en changing functions 
(or \\-e might s^iy sexes'! with the seasons of the year.' 
^See Protandrism.) 

Once ha\Tng seen their absoluteh- couuuon origin, 
we might expect to find what indeed reall}" exists, a 
"latent bisexuality in each sex."" In the hmnan race 
the similarity " is far greater than we mostly realise." 
Custom, education, costmne. and matexnity " ha%e all 
tended to accentuate tlie difference and obliterate the 
likeness of the two sexes, but, in reality, both in outline 

' G«ddes and Thoiusoa, EpinltUioH o/ ^.o, p. ,;.', 

» See Sir R, Ow-vu, /*.»M<Nio$««i«m, p. -M. etv. London. 1S40. 

Weissmann, Hfn.istv. i\. 01 and no. Oxford. li^oi. 

' C T, von Siebold. H",i.4»,' P«i»;j4*»icj:.*««^.f<>. Le.iptig. 1856. 

• R. LenckSLTt. GfHtrtti<<Kss?^Jk*4S. Fr.uikfort, iSjS. 

• EaolHtiox iV' 5.'!. p. ;o, 

• \V. D. Whitney. C>«/. />u<. "" Freemartins." J. Hunter. ■■ Account 
of a F>eein«rtin,"i'j»«Vosv\f' *!.",!.■ TrttHsUttiotts. i,","o. 

» P. Broca. PkfH,)iHfK,>\i H^tu.ii.y, C. C. Blake tr.iiis. pp. jo. 65, 
etc London, 1S6;. 

• E. Haeckel, E Ray Lankesters trans., Hs\<i. 0/ Ctt«tio», \x-].. i. 
pp. 14^. a-;, etc London. iS,-6. 

• See, for instance. Otto Weininger, 5.'.» ttJui C''.j'«cier, p. 19. 
London, i.x?6. 

.\, F. Guenther, i.\<«u<K-«^"i> .!> Hermjf'krwutism) [.uid bibUo- 
gr,iphv). Leipzig, 1S46. 

F, von Neucelvuier. Zf^jmrntHstfiluxg *■» .'.iter.!-'!" fi-V' Herm,)(-*n>- 
MHsmtis beim MfHscifK. Jahrbuch vii. p. +-t, Leip«i§, Max 
Spohr, TOO?, 

Hermaphrodite Fishes. See C.i«<6. .V<i<. Hi^i- \^ >""• P- 4JO- 
London, IQ04. 

« Havdiock Ellis P^v.Aofofv of 5.'». p. ij;J. Darmn. , ■umais .tiui 
PlisMti. ch. xiii. London, iScs>. 

Edw-ard Clodd. Thf Si^wv 0/ CtfMk>n. pp. S4, 190. etc London. 100 1. 

'* A paper on " Panhermaphroditism," by Dr. de Letamendi of 
Madrid. Tr,is read before the International XUxlicvl consivss at Rome 
in iS^. 

»» See r>r. Hjjtv Campbell, Di~fTrent4S ii **<? .V.'r.os...: 0»>-.r«iiJ^sJ« 
«f .\fju» rf«tJ IPowrfw. London. iSoi. ^ w 

" Dr. M. Good, • Lactation in the Male." .=:i,"<jwiV«trw«i. December 
:So:, Xew York,. 



300 A HISTORY OF PENAL METHODS 

of form 1 and in physiological potentialities/ they stand 
extremely close together." They are, in fact, as a brain 
specialist once said to me, opposite poles of the same 
thing. Between these poles come all varieties of tempera- 
ment, from the ultra-masculine to the infra-feminine. 
We may conceive them spread out like a spectrum, the 
colours (temperaments) blending into one another. For, 
psychically, there is no great gap between the sexes, 
which may indeed be said to overlap, on the emotional 
plane, and, in mankind, the power of idealism often 
appears to dominate and transform the working of the 
whole material body.* 

The main, or normal, attraction-forces, are at the two 
extremes of the emotional scale, but there are evidently 
others also, and thus among the infinite kinds of com- 
bination we also find the homogenic union. ° 

^ Professor E. Metchnikoff, The Nature of Man, pp. 59, 78, 298, etc. 
London, 1903. 

2 Dr. W. R. Williams thinks that many strange phenomena may be 
rendered intelligible "if we bear in mind the principle of correlated 
variability and the doctrine of the latent hermaphroditism of every 
human being." — Diseasesof theBreast, p. 112, London, 1894. For male 
lactation see p. 16, and A. M. Sheild's Diseases of the Breast, p. 17, 
Loudon, 1898 ; and L. Hermann's Physiology, p. 158, London, 1878 ; 
and again. Dr. Thomas Bryant, Diseases of the Breast, p. 89, London, 
1807. Ernst Haeckel, History of Creation, p. 290. London, 1876. 

' And more especially in adolescence. The young are apt to bear 
the impress of the Past, and carry indications of primordial types. 
[An instance of this is said to be shown in the extraordinary strength of 
an infant's hand-grip.] Thus certain organisms are hermaphrodite 
in their early stages though unisexual in their adult life, and, " accord- 
ing to some, most higher animals pass through a stage of embryonic 
hermaphroditism " (Geddes and Thomson, Evolution of Sex, p. 65 ; 
and H. Ellis, i. chap. vi.). See also Professor F. Karsch, Pdderastie und 
Triebadie bei den Tieren ; and Dr. Norbert Grabowsky, Die Mann- 
weibliche Natur des Menschen. For remarks on the alleged homosexual 
habits of the partridge see for instance Batman uppon Bartholome 
[Bartholomaeus Anglicus'], lib. x. ch. xxx. p. 187. London, 1582. 

* Some curious speculations on this point are advanced by H. Croft 
Hiller, Heresies, vol. ii. chap. iii. London, 1900. Also by C. G. 
Leland, The Alternate Sex. London, 1904, and by Frances Swiney, 
" The Evolution of the Male," Westminster Review, March and April, 
1905. White's Selborne, Letter vi. 

* If we inquire the first cause of passionate attraction, we can 
receive our answer in the words of Professor Owen : " It is plainly 
denied to finite understandings ... to comprehend the nature of the 
operation of the First Cause of anything . . . the ablest endeavours 
here to penetrate to the beginning of things do but carry us, when most 
successful, a few steps nearer that beginning, and then leave us on the 
verge of a boundless ocean of the unknown truth, dividing the secondary 
or subordinate phenomena in the chain of creation from the great First 



CLASSIFICATION OF CRIMES 301 

It may be that the gamut of the emotions is really 
wider and more comprehensive than we knew ; ' in the 
light-spectrum it has been discovered that there are 
potent rays at either end which are invisible to human 
eyes. It may be nature has more needs and purposes 
than were dreamt of in our philosophy. But it is not 
within the sphere, or indeed within the power of crimi- 
nology to explain the emotions.* 

Nor does it help us much to moralise and ask why such 
an instinct should have been created, or to reflect what 
an amount of misery would have been saved if it had 
never been. We have, unhappily, a very present and 
practical problem to deal with, which it is useless to deny, 
and most immoral to ignore," since the first principles of 
justice are involved. It is that we may rightly understand 
the nature of the phenomena, and not continue merely 
to beat about the shuttlecocks of convention in an 
atmosphere of lies, that I have tried to show what the 
facts really are. 

So far we have not dealt with the drink question. Nor 
shall we have to dwell for any length upon it, because 
this fundamental problem has been already treated by 
many specialists whose work is comprehensive and 
accessible. 

One dare not — with any hope of finishing this book, 
which has already taken years beyond the estimated 
time — touch upon the history of alcohol ; enough that 
it costs us 189 millions a year ; * how much it has cost 

Cause " (Parthenogenesis, in.). It is easy enough to discuss what takes 
place on the physical plane, h\xt the problem is, what set up the desire ; 
what is ultimately sought and accomplished ? Perhaps with problems 
in idealism we must accept the keen saying of Herbert Spencer, that 
" a thing cannot at the same instant be both subject and object of 
thought ; and yet the substance of the mind must be this before it can 
be known." 

1 See Sociological Papers, vol. ii. p. 21. London, 1905. 

^ This has indeed been many times attempted, notably by Grant 
Allen in his Physiological Msthetics, but all such efforts appear to me to 
resolve themselves into merely explaining one emotion in terms of 
another, botli being equally unknowable. To express one sensation 
by another is very like " defining night by darkness," or running round 
in a circle in order to arrive somewhere. 

* See remarks by Dr. Charles W. Allen in Twentieth-Century Practice, 
edited by T. L. Stedman, vol. vii. pp. 595, 596. London, 1896. 

• T. P. Whittaker, The Economic Aspect of the Drink Problem, p. 11. 
London, 1902. 



302 A HISTORY OF PENAL METHODS 

mankind, how much it has retarded himian progress 
cannot be even estimated.^ 

But keeping severely to our own subject, there is no 
doubt that the effects of drink on criminality are very 
great indeed, and many eminent authorities ' have 
charged it with causing directly and indirectly three- 
fourths of the total of crime.' 

It should, perhaps, be added that this extreme state- 
ment has been questioned, or at least qualified. Captain 
Nott Bower, when Chief Constable of Liverpool, con- 
sidered that fifty per cent, would be a fair calculation of 
the amoimt of crime set up by drink.* And Mr. W. D. 
Morrison thinks " the effect of drink has been exag- 
gerated," • pointing out that offences, and especially 
murderous affrays,' are very prevalent in the more 

1 See the views of John Bright and W. E. Gladstone quoted by Dean 
Farrar, Fortnightly Review, vol. liii. [1893]. 

' See Gordon Ryland's Crime, p. 22. 

Francis Peek, Social Wreckage, Appendix. 

Lord Chancellor Cairns said : "I believe it is scarcely possible to 
exaggerate the blessings that would come down upon this country from 
the practice of temperance. It would empty our gaols." 

3 Cardinal McUining : "... According to the testimony of many 
of the magistrates it is the source, directly or indirectly, of 75 per cent, 
of the crimes committed." 

Rev. J. W. Horsley : " Intemperance, which by a moderate estimate 
fills, directly or indirectly, three-fourths of our prison cells " {Prisons 
and Prisoners, p. 49). 

Sir Robert Anderson : " Some of the ablest and most experienced 
of our judges, indeed, have publicly declared their conviction that most 
of the crimes which come before the criminal courts may be traced, 
directly or indirectly, to the one vice of drunkenness " {Nineteenth 
Century, March 1903, p. 499). 

Judge Pattison (to a jury in 1844) : " If it were not for drinking, 
you or I would have nothing to do." {Fortnightly Review, vol. liii. p. 791). 

Mr. Stipendiary Wright : "If you were to take away the effect of 
drink in my district " (Potteries), " I do not think I should have practic- 
ally any work whatever to do " {R. C. Licensing Laws Report, p. 81). 

General Booth : " Nine-tenths of our poverty, squalor, vice, and 
crime spring from this poisonous tap-root " {Darkest England, p. 47. 
London, 1890). 

Mr. Stipendiary Cluer (to a prisoner) : " You need not tell me that it 
began in a public-house. If there were no public-houses I should not 
be here, and nine-tenths of the poMcemen would not be needed." 

* Royal Commission on Licensing Report, p. 80. 
° Mind, New Series, vol. i. p. 514. 

* But I should like to know how many of the crimes of violence 
drink may still be accountable for. A man may not be absolutely 
drunk, but yet have taken suf&cient alcohol to lose his mental balance. 
Many of the rows along the Mediterranean coast take place over gam- 
bling games, such as Mora. One of the heroes of The Iliad, if I remember 
rightly, committed manslaughter on being angered over dice. 



CLASSIFICATION OF CRIMES 303 

temperate countries of the south of Europe. But while 
their people are undoubtedly given to ahnost maniacal 
outbreaks of fury when provoked to anger, they are also 
very poor and often terribly taxed out there. 

But while I cannot affirm that the removal of alcohol 
would abolish crime under the present conditions of 
Western civilisation, where the struggle for wealth — not 
for bread and subsistence alone, but for all the honours 
and alleviations which that one little word implies — 
causes five-sixths of the more serious offences, ' yet alcohol 
remains a huge demoralising force, and just as gambling 
gnaws at the tap-root of industry, so drink decays the 
very bones of character. 

The bar is the curse of every ship afloat that carries 
one, and nearly all the brawls and outrages which keep 
the police busy have staggered out into the street hot from 
the public-house. There is enough of the wild beast in 
human nature to make it always very dangerous to cloud 
restraining reason. What the results are may be seen all 
round. But again I would repeat the words of Henry 
George, that where we find a social problem there is a 
social wrong at the bottom of it. Reform will never come 
by negative repression ; " only he can destroy who can 
replace. In the wicked old days it was by drink alone 
our soldiers whiled away the hours in Indian heat and 
in English rain ; off duty there was nothing else to do. 
" Boozing," says the Royal Commission Report,' " was at 
one time ahnost the only excitement open to the working 
man." ' 

We have allowed the degrading public-house to remain 
the poor man's only club, his centre of enjoyment, his 
refuge from squalor and crowding at home, his palace of 
light and warmth out of the fog and cold.* And all this 

"^ See W. Bevon Lewis, " Origins of Crime," Fortnightly Review, 
vol. Uv. p. 329. 

2 See criticism of Mr. Charles Booth's work, Saturday Review, 
vol. xcvi. p. 333. 

^ Licensing Laws, p. 2. 

* On the failure of the Anti-gin Legislation of 1736 see W. Besant, 
London in the Eighteenth Century, p. 297. London, 1902. 

' " Many a man takes to beer not from love of beer, but from a 
natural craving for the light, warmth, company, and comfort which 
is thrown in along with the beer, and which he cannot get except 
by buying beer." — General Booth, In Darkest England, p. 48. London, 
1890. 



304 A HISTORY OF PENAL METHODS 

is kept up out of the sale of drink, and the selling is in 
the hands of the man who has to make his living by it, 
who has to keep his wife and children by it. It is only 
common human nature that he should wish as much as 
possible consumed — the more the better — and that the 
would-be temperate customer should feel he was not 
wanted there, should feel that he was mean and shabby 
if he did not keep on drinking, for the good of the house 
and the bad in the home. 

Moreover, throughout aU classes exists the excellently- 
meant but yet destructive form of " have-a-drinking " 
hospitahty, ranging from the half-pint of the very poorest 
to the mess of the " Black Tyrones " * described by 
Rudyard Kipling, who, in the entertainment of their 
guest " individually and collectively . . . had striven in all 
hospitality to make him drunk." It may, I think, be 
said \\-ithout exaggeration that the common and criminal 
assaults which do not take their origin in drink are very 
few in number, and nearly always pathological in character. 

■^ Life's Handicap, p. 85. 



CHAPTER XVIII 

CLASSIFICATION : OFFENDERS 

" Learn what is True in order to do what is right." 

Huxley on Descartes. 

In the last chapter we examined the nature and classifica- 
tion of offences : we have now to try and understand the 
nature of the offender — of the criminal. 

It may seem strange that I should find it necessary to 
point out that the criminal is a htunan being, and not, as 
many foolish people really seem to imagine, a creature 
with incipient horns and an elementary tail ! And all 
men have " organs, dimensions, senses, affections, pas- 
sions." ' Shylock's defence of his down-trodden race is 
true of all mankind, both free and bound. 

It is time, in the twentieth century, to be quite clear in 
our minds that devils do not exist ; we have to deal only 
with men and women, and they can be cruel enough 
as they are. ' ' The criminal, ' ' it has been said, ' ' is always 
the man we do not know, or the man we hate, the man 
we see through the bitterness of our hearts." ' Let us 
try to come very near, to make him confess without fear 
or deceit, and, with a knowledge of our own frailty, let 
us try to imderstand what manner of man he is. 

Just as there are two great groups of crimes (the 
circimastantial and impulsive), so also the criminals fall 
naturally into two great classes: those who commit 
crimes from the stress of circumstances, and those who 
transgress the law from some defect or abnormality 
existing in themselves. There are indeed cases that 
overlap ; there are persons who, at first sight, appear 
to belong to one class, when they should really be placed 

1 Merchant of Venice, III. i. 

2 Clarence S. Darrow, Resist not Evil. London, 1903. 

20 305 



306 A HISTORY OF PENAL METHODS 

in the other ; and there are complicated cases where a 
number of evil conditions act and react upon the indi- 
vidual. But when we look close enough the dividing 
line between the circumstantial and the impulse prisoners 
is nearly always clear and obvious. And the gulf fixed 
between the groups is very great indeed. 

The root of all real crime is selfishness. Not that the 
successful are necessarily altruistic, or the failures neces- 
sarily the more selfish. There is, in our present society, 
a direct incentive towards anti-social conduct, in that 
it is founded upon competition. Competition may, or 
may not, be a necessary process in the grim life-struggle, 
but it is most distinctly civil war. 

To conquer in that war, to overcome their fellow 
citizens, is the supreme object of most men. For those 
who fail is reserved everything that is hard and unpleasant. 
To such as succeed all enjoyments are open ; the golden 
key once grasped unlocks all doors, few care how it was 
got ; people are not punished for being mean and para- 
sitic, but for being aggressive in an illegal way. 

The sword of justice descends not for breaches of 
honesty and honour, but for such delicts as are outside 
the rules of civilised (social) warfare, and which are so 
clumsily perpetrated as to be practically punishable. 
It may be said that this has been the theme of all the 
sermons since civilisation, and that our plaint is against 
fixed conditions red-written in the world-wide laws of 
life. But these points are beside the question and have 
no bearing on immediate facts. 

Under competitive conditions it must needs be that 
offences come. The presence of crime is part of the price 
we have to pay for what is often called free competition. 
Some say it is the price of invention and progress ; others, 
that it is the penalty imposed for the lack of social or- 
ganisation. It is sufficient for the criminologist to point 
out that the toll is taken, and that the sacrificed are in 
our midst. 

The thing we have to fight is selfishness; and while 
there are no " devils " who delight in evil for its own 
sake (why should they ?) there are more people than one 
cares to reckon up devoid of all commiseration for their 
kind. These are the real criminals of the world, although 



CLASSIFICATION: OFFENDERS 307 

they do not always occupy the dock » and may sometimes 
preside upon the bench or govern kingdoms from the place 
of power. 

The true criminal, by whom I mean the man who will 
deliberately sacrifice others for his own advantage, is 
found in all ranks of society. He may never have occasion 
to transgress the law, and his true character may be 
disguised in rich apparel, showing forth only to the keen 
observer, in a number of actions which no law can punish 
and may even be made to support, but in which the brutal 
nature of the man comes out.' 

We will not pause at this place to discuss how far he 
has been set up by surroundings, or whether he must 
really be born again — and born different ! The anti- 
social man has been a persistent type from time im- 
memorial in all competitive communities. 

Methods and opportunities may vary with the centuries,' 
but through aU kinds of clothes and customs we find the 
egoist ever emerging, the parasite (often in the worst 
cases, apparently unconscious of being one) preying on 
other people ; the traitor, the " friendly native," and 
the " sworn tormentor," waiting to be hired, and ever 
ready for the vilest tasks. I have wished to begin with 
what I may call the criminally-selfish class, because it 
may be placed at the opposite extreme from those which 
we shall presently examine ; and if prisons — as distinct 

1 When I read the story of the notorious murderer Lacenaire, I could 
not help thinking what high offices he might have filled had he been 
able to complete his legal studies. What a " strong " judge this man 
might have become if the paternal purse had not run short ! Brave, 
temperate, moral, and merciless, he might so easily have risen to be 
robed in red and ermine, and to be damned beneath a marble monu- 
ment, instead of ending by the common guillotine. See H. B. Irving's 
Studies of French Criminals, etc. 

» For instance, in an article entitled " The Passing of the Circuits, I 
read the following : " It is related of a member of the Western Circuit 
who afterwards attained great eminence, that, being as a young man 
too poor to drive and too lazy to walk, he more than once, at the begin- 
ning of a circuit, induced some unsuspecting dealer to let him have a 
horse on approval, and after riding it hard and feeding it badly for 
six weeks, would return it to the owner with the remark that it was 
but a sorry jade." — Pall Mall Gazette, Sept. 7, 1899. 

=> For instance, the witch-finder of the olden days has now evolved 
into the " sex " blackmailer. Popular ignorance of natural pheno- 
mena, fear, cowardice, and the scent of scandal can be always counted 
on. The justices did (and do) the rest in providing the tools. 



308 A HISTORY OF PENAL METHODS 

from asylums — continue to be necessary in the future, for 
this class only will such structures stand. 

I am not referring particularly to the " habitual 
criminal," of whom just now we hear so much, but to 
the deliberate wrong-doer ; the man who intentionally 
sacrifices others ; not, of course, from diabolical malice, 
but from cold-blooded insouciance. Also, I am referring 
not so much to the man actually behind the bars (for the 
calculating criminal frequently escapes, although he does 
get caught from time to time) as to the kind of man 
whom we should wish to see secured. 

The presence of the inhuman parasitic type raises the 
complex question of responsibility. People talk Very 
vaguely on the subject, making it monstrous with theology 
and foggy with metaphysics. Some will maintain that 
to question full freedom of choice, under all circum- 
stances, is to make meaningless such terms as " good " and 
" evil " ; a doctrine which, in its extreme outcome, would 
surely place all Bedlam in the dock. Others have spoken 
of all crime as hereditary disease, which sounds about as 
sensible as saying that all disease is an hereditary crime ! 

We must distinguish, using common sense. I do not 
say that all have not excuse, even perhaps to ultimate 
exculpation, if the conflicting forces of temptation and 
resistance came to be balanced where all thoughts are 
known. I would repeat the saying of Thomas a Kempis, 
" In judging others a man labotirs to no purpose, com- 
monly errs, and frequently sins ; but in examining and 
judging himself he is always wisely and usefully em- 
ployed." But while the absolute nature and quality of 
any one is a thin^that can never be truly established on 
this side of the grave, we may not, in our diagnosis of 
criminality, assert that a man is mad merely because he 
is bad.' 

Insanity means a definite state of disease or impairment 
of the mental machinery, and unfortunately the absence 
of altruism does not by any means imply the innocence of 
irresponsibility. Want of heart (the only real evil) does 
not unhappily always show want of head. 
There are indeed people who will exploit (for the 

F '■ Or, if a man will be contentious, we can express it ; guilty of 
aggressive conduct, which, for practical reasons, we assume to be so, 



CLASSIFICATION : OFFENDERS 309 

deliberate crimes have nearly always to do with the 
destructive wealth-struggle) and sacrifice others to any 
extent, people who are reasonably responsible for their 
acts, people who are at war against the Commonweal. 

I have laid stress upon the practical responsibility of a 
certain class of criminal the more to emphasise, later on, 
how many qualifying circumstances we must in justice 
make allowance for. 

" Good " people and " bad " people represent groups of 
tendencies, altruism or selfishness preponderating, as the 
case may be ; but in the extreme complexity of human 
nature, men can never be divided sharply into " sheep " 
and " goats," for none attain absolute virtue, any more 
than any descend into unmitigated villainy.' There is 
no hard and fast line drawn between the types — much 
as they differ — any more than there is a sudden and 
violent change in climate from the tropics to the arctic 
zone ; atmosphere alters but in infinite gradations, the 
one same heaven is overhead, the one same ocean sweeps 
from pole to pole. So a character is made up of long- 
accumulated qualities, some subtly inherited, but most 
of them acquired along life's road, the needs of natxure 
underlying all. 

We began our survey with the deliberate criminal 
(that is, the selfish-inhuman type, when it happens to 
transgress the law and to be found out doing so) because 
beyond doubt such a type exists ; but I think it wUl be 
found that the vast majority of offenders go wrong, not 
so much from having what is called a bad character, as 
from not having been morally strong enough to gain 
and hold a good one. 

Even the Circumstantial criminal is mostly a warped, 
stunted, and ill-balanced being. Said that able crimino- 
logist the late Mr. A. R. Whiteway, " the equilibrium of 
the professional criminal is by nature so unstable that 
if he is hungry he steals almost automatically because he 
has no self-control ' ' ; and elsewhere,'' " the innate criminal 
is a poor creature in mind, body and estate.' 

1 " There is some good in every man," wrote the eminent criminal 
lawyer, Serjeant E. W. Cox, ' ' if only we rightly search for it.' ' — Principles 
of Punishment, p. 229. London, 1877. 

" Recent Object-Lessons in Penal Science, p. 44. London, 1898. 

» In his larger work of the same title, p. 67. London, 1902. 



310 A HISTORY OF PENAL METHODS 

" Deficiencies in memory, imagination, reason," says 
the Rev. Dr. Morrison, " are three undoubted character- 
istics of the ordinary criminal intellect." ^ 

Even that strong exponent of the hardest officialism, 
the late Sir F. DuCane, was so far in agreement when he 
admitted that " a large number of prisoners are persons 
who are absolutely unable, or find it extremely difficult, 
through mental or physical incapacity, to earn their 
livelihood even under favourable circumstances." • And 
Mr. J. B. Manning, late governor of Pentonville, declared 
of a certain class of the " habituals," that he had " those 
half-witted creatures coming again and again to prison." ' 
Dr. Bevan Lewis, superintendent of Wakefield Asylum, 
said in his evidence,* " I should say that both insanity 
and crime are simply morbid branches of the same stock. 
Given a certain environment, you will have crime ; given a 
more favourable environment and you will have simply 
insanity." And Dr. T. C. Shaw, of Banstead, said,' 
" According to my view, the moral demonstration de- 
pends on the perfection of the physical structure." 

We have then conclusive evidence as to the habitually 
diseased and defective constitution of the common or 
Circumstantial criminal; and, as regards his physical 
condition at any rate, he is but typical of a very large 
class. Thus we read that out of 12,000 recruits examined 
for the army,* over 31 per cent, had to be rejected for 
diseases or defects ; and elsewhere we are told that nearly 
80 per cent, of the children in industrial schools had 
diseased and decaying teeth,' a state of things which, 
said the lecturer, brought thousands to the hospitals 
every year with all sorts of complaints. The housing 
problem and the nourishment problem do not lie within 
the compass of this book, but it is obvious that dirt, 

1 Crime and its Causes, p. 195. London, 1891. 

See also Albert Wilson, Unfinished Man, p. 40, etc. London, 1910. 

" The Punishment and Prevention of Crime, p. 171. 

3 Departmental Committee, 1895, Ev. p. 35. 

* Ibid. p. 303. 

' Departmental Committee, 1895, Ev., p. 197. 

The whole evidence of these two eminent doctors may be studied 
with advantage. 

• R. Com. on Physical Training Report, p. 22. Edinburgh, 1903. 

" An address to the students of the Middlesex Hospital by Mr. Hern, 
Brit. Med. Journ., Oct. 3, 1903, p. 796. 



CLASSIFICATION: OFFENDERS 311 

malnutrition, and especially drink, are mighty and active 
agents of degeneration, and when all these are present 
to aggravate the fierce and overwhelming competition 
struggle,^ who can wonder that crime and misery are 
rife on all sides around ? 

But besides the selfishly inhuman, besidesthe stampeded 
herd on-driven over the abyss of crime by bad social 
conditions, there remain those varied and often most 
perplexing people, whose qualities and defects arise within 
themselves, and who may all be roughly classed under 
Group II. 

The Criminally-impulsive temperament, like the Self- 
ishly-inhuman, may, or may not, bring the possessor 
into the iron clutches of the Law. But when the impulse- 
criminal escapes conviction, it is from good luck or some 
saving circumstance, rather than from deliberate design. 
He may indeed sail "somehow" through life like a 
badly-laden vessel, and may keep free from storms or 
be taken in tow. But under different conditions, our 
lop-sided ship may get bad weather right away, and, 
listing hopelessly at the first squall, plunge down for eVer 
in the trough of crime. In other words, the weak-minded, 
fatally impulsive person, just simply from lack of " grit " 
and " grip," may easily become, and end, a hopeless 
and habitual criminal. For in the fierce contention of 
the crowd, when once a man of this sort is pushed over, 
he does not often have a chance to rise, and if he could 
not face life's battle when free, much less will he be able 
to do so afterwards, when weighted down by the ad- 
ditional hardship of having once been put away in prison, 
but rather, sinking under the increasing load, he will let 
things slide, abandoning all effort, until, as Mr. Whiteway 
expressed it, " his existence becomes a life of omitting 
to stand upright in any relation where it may appear to 
him, for the moment, to be an easier matter to lie down." ' 
But it must not be imagined that the impulse-offender 
is always a mere drifting degenerate: often indeed he 
is his own and only enemy — a man who may show real, 

1 It has been estimated that in 1901 the various undertakings by 
land or water in the United Kingdom cost the lives of 4,627 
workers and wounded 107,290. See article by W. J. Gordon, Lnsure 
Hour, Sept. 1903. 

» Object-Lessons, p. 45- London, 1898. 



312 A HISTORY OF PENAL METHODS 

though generally capricious, genius, and who may be 
capable on great occasions of noble impulses and deeds 
of daring, which ordinary respectable and selfish citizens 
have not imagined even in their dreams ! The impulse- 
offender is mostly unbalanced rather than bad, and 
always far more to be pitied than condemned. A typical 
illustration of the kind of man I mean will be familiar 
to the reader, though perhaps not in that precise aspect, 
in Dickens' character of Sydney Carton.' But in spite of 
being frequently endowed with fine and even brilliant 
qualities, the man of perilously-impulsive tendencies has 
usually the hardest lot in life. The selfishly-inhuman 
may batten monstrously upon others and quite escape 
the censure of this world, but the unhappy victim of 
a temperamental " twist " may have his very virtues 
turned to elements of danger ; may easily trip up and be 
caught and drawn ' into the unrailed engine of the Law, 
and then, with our present primitive and indiscriminating 
methods, only a given act is to be dwelt upon in court, and 
not the nature of the offending person, often the only 
thing which truly indicates its kind.' 

A word may now be said on " overlapping " crimes ; 
offences which apparently belong to one class, but which 
are really " mixed," or in the other — acts which may 
appear to be in Group I (the Circumstantial offences), 
but which, from the manner of their commission, should 
be placed in Group II (Impulse-acts). Thus offences 
against property, which constitute the overwhelming 
bulk of serious crime, are set up by bad social conditions, 
or by the deliberate conduct of parasitic people. But 
this is not always so. In every rank of life, incredible as 
it may appear, there are occasionally men and women who 
steal : it may be some particular thing on which their 
minds are morbidly intent, or it may be any object which 
they can conveniently lay hands upon. 

Such a person was the late Lord X, a territorial magnate 
and a cabinet minister in the late reign,* who is alleged 
to have been followed about by an agent or secretary, 

^ Tale of Two Cities, 

2 See also Blagg and Wilson in one of the Fabian Society's Essays. 

3 See Sir Robert Anderson's strong views upon this point. Nineteenth 
Century, February and July, 1901. 

* Of Queen Victoria. 



CLASSIFICATION: OFFENDERS 318 

who often settled and smoothed over the great man's 
eccentricities. Such a person was a former Lady C,' who 
was well known to pocket any small silver articles or 
knick-knacks she might fancy, and whose friends would 
often send round the next day requesting Lady C to return 
such and such a thing, that she had lately — borrowed ! 
It is sad to reflect that if these two, and others like them 
(and the same passion has been alleged against a man of 
still higher rank who died a decade or so ago), had been 
but people in a humble station, they would undoubtedly 
have passed their lives perpetually in prison. This has 
occurred over and over again ; looking back over my 
case books, I find a great number of instances of accumu- 
lating sentences amotmting in their aggregate to twenty 
and thirty years, and even more, of penal servitude. 

A typical trial of this nature took place at the Dorset 
Assizes a few years ago, when a man is stated to have 
been five times convicted of petty thefts, together not 
amounting to two pounds. For these he had endured 
sentences amounting to five-and-thirty years' imprison- 
ment. The judge, in this instance, gave him but four 
months' imprisonment, and promised to write to the 
then Home Secretary about his ticket-of-leave, which 
of course threatened to be forfeited. Unhappily in the 
case of the poor and necessitous it is often a most difficult 
matter to distinguish between incorrigible roguery and 
genuine kleptomania ; but the clumsy commission of 
repeated offences, after having incurred severe and 
accumulating penalties {i.e. sentences increasing for the 
same kind of offence on account of the previous con- 
victions) should make the court look very carefully into 
the prisoner's state of mind. 

There are indeed a number of odd, eccentric offences, 
even against property, puzzling, overlapping, and Group 
II cases, which argue loss of mental equilibrium. An 
example of this kind is furnished in the conduct of J. W., 
who managed to forge cheques to the extent of £i,434- 
Part of the money he spent in betting transactions, so 
commonly the origin of a clerk's downfall ; so far, this 
seems an ordinary Group I crime. But it looks more 

1 I was told of this case by a lady now (1912) over eighty, who knew 
all the circumstances. 



314 A HISTORY OF PENAL METHODS 

like an overlapping offence when we read that he would 
aimlessly indulge in special trains, frequently ordering 
this wild piece of extravagance a few minutes before the 
starting of the orthodox express. He received three 
years' penal servitude. Here is another story. G. B. had 
just come out of prison for defrauding the G.E.R. ; on 
his release from Ipswich gaol he again travelled without 
a ticket, for which, of course, he incurred certain trouble. 
It was subsequently stated that he had spent some fifteen 
years in prison, and had been many times convicted of 
this particular kind of offence. 

A person who, on the reported evidence, might well 
have been placed in our Second Group was J. B. W. 
His mania was sacrilege, and he had torn up the books 
and fittings of a certain church and rifled the offertory 
box. But after he had done some thirty pounds' worth 
of this wanton damage, he wrote a note full of obscene 
expressions and addressed it to the rector. This letter 
he actually signed with his right name, through which 
he came to be arrested. In spite of this, the court 
apparently considered him responsible, and it awarded 
him twelve months' hard labour. 

Mr. Thomas Holmes, the police court missionary, has 
given us some rare glimpses of human nature in that 
great-hearted record of his work.' " To my knowledge," 
he writes, " there are large numbers of criminals who 
commit but one sort of offence and are in every other 
direction honest and decent citizens." 

And of such he gives many anecdotes written from 
personal knowledge. One poor woman had a craze for 
boots — stole always boots, and never anything else. 
She could have had no need of them, having been well 
supplied by one who knew her failing ; she was risk, 
ing ruin and a return to long imprisonment, but she 
withstood the spell in vain and was dragged down. 
Another person took nothing but watches, urged forward 
by a similar obsession ; severely punished again and 
again, he forfeited his liberty and the decent comfort 
he could win by labour ; pulled under by the small 
metallic " hands " ! I too, have, in the course of time, 

1 Pictures and Problems from London Pofjce Courts, p. 207. London, 
1900. 



CLASSIFICATION: OFFENDERS 315 

collected a fair number of cases of all sorts — alas ! but a 
small percentage of those that have occurred tluroughout 
the land. 

In Paris they found a man who stole nothing but books ; 
he neither read nor sold them, but the police found his 
room piled with volumes of all sizes and prices ; the 
leaves had not been cut, and they acquitted him of theft. 
Another near-home case was of a girl who stole — but only 
bassinettes — perhaps in some vague groping way providing 
for that child imborn she dreamed of, whose image had 
turned her brain ? 

But it is when we pass away from acquisition-crimes 
that we get more clearly and indisputably into the Second 
Group. Impulse-acts — altogether representing but about 
one-sixth of the whole volume of serious crime — can be 
subdivided into the normal and the abnormal. That 
somewhat arbitrarily-imagined being, the " average man," 
has in the centuries of civilisation slowly and painfully 
acquired some small degree of necessary self-control. 
It is an imcertain and a varying stay, built up only by 
careful training, sustained only by inward effort ; often 
undermined by alcohol, more rarely swept aside by 
overwhelming passion. 

As the world stands to-day, and as things wUl remain 
within the practical and immediate outlook with which 
this book has to deal, all people must needs pass through 
terrible temptations. And it seems reasonable to assume 
that those who succumb are either beset with trials 
above the lot of ordinary mortals, or that they lack normal 
resisting-power. 

That there is practically a breaking-point in the 
resisting strength of nearly every sotd living, is fully 
apparent both from history and practice. Out of history 
it may be deduced, from the extraordinary criminality 
ever evinced by statesmen in all ages ; which after much 
puzzled consideration, I can only account for by the 
assumption that they must be far more tempted than 
are private people, from the great magnitude of the 
issues at stake. And in practical experience we con- 
tinually find that a sudden, or an exceptionally strong 
temptation, will overthrow people of character. 
Even the Law has sometimes allowed this, and actions 



316 A HISTORY OF PENAL METHODS 

which are ordinarily considered to be highly criminal 
have been from time to time condoned as justifiable from 
overwhelming antecedent provocation. 

Thus only a few years ago a judge who had been always 
looked upon as being most severe, gave a man nothing 
but a day's imprisonment for having shot another whom 
he had discovered with his wife under most flagrant 
circumstances. Some of my readers may likewise re- 
member two much more recent cases in which sentences 
of six, and eighteen, months were given, for what seemed 
assassination ; and a good many years ago the survivors 
of a boat's crew, who had been tossed about for days 
till driven to delirium from thirst, received a sentence 
of six months' hard labour for cannibalism and murder. 
Instances involving all kinds of crimes and illegal acts 
might here be cited, but it will be sufficient for me to 
say that, whether admitted by the Law or otherwise, 
people of normal health and decent character may, at 
the many turnings of life's road, come to be struck by 
some wild passion-wind ; or find a whirlpool of allure- 
ment open, where seemed to be a safe and shallow ford ; 
before which ordinary and unaided nature will mostly 
turn and strive to fly in vain. 

But the kind of cases which origiaate from the sudden 
stress of phenomenal teinptation overcoming the resisting- 
power of an approximately normal citizen, are nearer 
to the Circumstantial, or Group I, offences, than those 
which are entirely due to some abnormal or diseased 
condition in the nerve-structure of an individual. 

Thus there are certain offences which, I have noticed, 
most people commit, such as — to put it mildly — trying 
to get the better of a railway company by travelling in a 
superior class, etc. ; also evading customs duties and all 
manner of taxation — the Conscience money which is, from 
time to time, acknowledged by the Chancellor of the Ex- 
chequer, being, I should imagine, but a small percentage of 
the money withheld. Besides these, we find the common 
acceptance of secret commissions and the thousand-and- 
one acts of " Dodson & Fogg " equity, so plentiful in 
horse-dealing and in the fluctuating forms of business. 

Differing vastly from the legal, but perhaps only in 
degree from the moral point of view, are the plainly 



CLASSIFICATION: OFFENDERS 317 

punishable acts arising from immense temptation. Many 
a man has taken what he thought only an unauthorised 
loan, " borrowed " from his employer, as he might 
imagine, from some supremely pressing call, or in the 
mad idea of quietly repaying it. 

Here we have obviously crossed the barrier of what is 
called common honesty, but all the same, these things 
have been too often done by weak-principled persons, 
who yet never intended to be systematic parasites. 
Similarly, I have no doubt that young men have been 
led into the commission of rape from the more criminal 
conduct of one or two of a party, who in the ordinary 
course of life were normal people of average impulses. 

Even the clever and systematic swindler — a very 
different person from the man who keeps on committing 
small and easily-detected thefts — though a true criminal, 
is acting along normal lines. We need only to find utter 
selfishness — which is unfortunately all too common — 
and a combination of circumstances, to start a perfectly 
normal man on this pernicious path. 

But there are other offences which the multitude woidd 
never commit — acts which no approximately normal 
and well-balanced being would attempt, even away in the 
solitude of the great Sahara, a thousand miles from any 
possible police station ! For at the extreme end of the 
Second Group, furthest removed from common causation, 
ordinary motives, and therefore, of course, from criminal 
responsibility, we reach the sphere of abnormality, the 
domain of disease, the borderland of insanity, and, 
ultimately, obvious mania. The various offenders within 
this category are often physically, and therefore mentally, 
incapable of ordinary self-control, sometimes as regards 
all the affairs of life, or it may be, only in certain 
directions, in which they become the victims of abnormal 
cravings and intense desires, which the majority of ■people 
have never experienced} 

1 I endeavoured to express this when addressing the seventh Inter- 
national Congress at Cologne : " One great and absolute distinction can 
always be made in the classification of crime. And that is between the 
Normal and the Abnormal . . . predatory crimes then are generally 
normal ones. . . . But there are certain passions and desires which 
do not tempt the ordinary man or woman, and which are sometimes 
amazing and inconceivable," etc. Vide Bencht, p. 430- Heidelberg, 
igt2. 



318 A HISTORY OF PENAL METHODS 

If the old bugbear of Free Will is here brought forward, 
I must reply that there is neither time nor space for 
purely philosophical discussions in these pages. Many 
indeed have dabbled in the doctrine to justify vicarious 
revenge, who yet refuse to face all it implies. But we 
are in nowise called upon to deal with abstract specula- 
tions as to what may be the precise relationship of Man 
to Mystery. 

When metaphysicians and schoolmen have wrangled 
for thousands of years over Existence-problems, and have, 
in all that time, made no apparent progress with them, it 
will be wise for practical criminology to leave them alone. 
Therefore I refuse to discuss Freedom or Predestina- 
tion, the Omnipotence of God, or the far-fallen state of 
Man, and also the theoretical responsibility of the sound 
and sane. 

But I must most unhesitatingly assert that many 
unhappy people have not got Free Will, at any rate along 
temptation-lines. If such as they were ever in condition 
to claim it, a stage is reached when it is long-since lost. 
They are as rudderless boats whirled round in eddies 
where the current leads them, though it were through the 
mutilating mill ; they are as reckless riders of brakeless 
wheels, hUl-drawn down the steepening danger-dip, and 
carried onward helplessly and hopelessly ! 

Punishment imparts nothing to such as these; the 
boldest believers in the power of pain always assume 
the presence of a Will (on which alone their penalties 
could act, even if we ignored the complicated conditions, 
already examined, which render them so ineffective 
actually) . In these pathetic people there is no will ; 
only a need that rises like necessity — an inward fiat 
iirging on like Fate. 

Whatever the mind's relation to the body may really 
be (and let us above all things keep away from meta- 
physics or theology), each of us must have painfully 
experienced, and have perceived or read in the case of 
others, how a derangement of the brain, or body, renders 
the clearest intellect unworkable. Who can contend 
against the dull weight of sick headache, or resist long- 
continued spells of sleeplessness, or retain reason during 
deliriimi, or command consciousness in the face of com- 



CLASSIFICATION : OFFENDERS 319 

pression ? And have not the greatest and the best gone 
down before those subtle and intangible brain troubles, 
which, if they come, can steal away men's minds, and 
leave them mute or bellowing like beasts ? 

" It is to the leaders of medicine," Dr. Poore is reported 
to have said,* " that we owe the recognition of the fact 
that conduct which we once regarded as sin, calling for 
cruel and revengeful punishment, is in reality disease, 
which must indeed be controlled with firmness, but 
firmness tempered with mercy rather than vengeance. 
There can be no doubt that one of the causes which has 
led to the decrease in our prison population and the 
increase in our asylum population has been the gradual 
appreciation by the educated public that much disorderly 
conduct is in reality disease. Not even a Jeffreys would 
now be permitted to prescribe hard labour or a flogging 
for a poor wretch with optic neiuritis whose real need was 
iodide of potassium." 

The words of the Harveian Lecturer do indeed indicate 
the ever-augmenting tendency of educated thought. 

But the mass moves more slowly than the individual, 
and the law — which Mr. Bumble so immortally criticised 
when it came home to him — lags long behind popular 
sentiment. 

We do not now whip people to drive " devils " out of 
them; but yet the law, to every appearance, assumes 
their continual presence in the prisoner, though we are 
somewhat less crudely anthropomorphic nowadays, talk 
only of the seductions of the devil in obsolete treason- 
trials, and clothe what once were frankly " evil spirits" 
beneath a metaphysical drapery, calling them sins, 
depravity, etc.) ' by obstinately presupposing mere 
malignity of motive, in cases obviously due to innate 
abnormality or organic disease. 

In the more palpable and glaring cases, the victim is 

* Harveian Oration, Oct. i8, 1899. 

2 See for instance Sir Robert Anderson's quotations from Sir Edward 
Fry and others. Nineteenth Century, Jan. J904, p. 125 ; and also some 
of the views expressed by W. S. Lilly in his Right and Wrong, p. 124. 
London, 1891. , , , 

The ready way in which brutal ignorance has always accounted for 
anything it did not take the time or pains to understand 1 Let us re- 
member Mrs. Squeer's remarks on infectious disorders ; she said they 
were all obstinacy ! 



320 A HISTORY OF PENAL METHODS 

handed over to the care of the asylums (or at any rate 
to Broadmoor), where his, or her, ailment is attended 
to on therapeutic principles; but in the subtle and in 
specialised cases, when we have to deal with the abnormal, 
monopathic, or half-mad, there is but small change from 
grotesque old times ; the criminal courts seem to have 
slumbered on in all their medieval barbarism. 

Acting upon erroneous premises, the penal law has been 
of course foredoomed to failure. The moral " Fetish " 
followed in olden times was the idea of " possession " ; 
but while the " devils " disappeared before the rise of 
scientific daylight, a new crime-creed rose up and 
deceived many, which was to prove at least as powerful 
a plea for cruelty — the Fetish of Free Will. 



CHAPTER XIX 

THE DIRECTION OF REFORM 

The Criminal is ever present with us ; was it not always 
so ? He came, descending through the centuries ; he 
stands to-day in the deep shadows of Civilization ; and 
not in our own land only, but throughout all competitive 
communities. People have long since come to acquiesce 
in that to which they are accustomed, looking on crime 
as part of life's hard burden, ordained and fixed in the 
Nature of Things. They have indeed, from very force 
of habit, come to prepare for "ordinary" criminality, 
just as they look for crops in their due season. The 
perpetual presence of the " common " criminal is accepted 
much as the rats are amongst all ship's cargoes, as being 
a great, but perfectly unavoidable nuisance permitted by 
Providence. Both the robbers and the rats are always 
being pursued and chivied about in a desultory sort of 
way, but neither are traced home to their cause and 
origin, and so are never seriously met and stayed. 

When we next observe a dog spin round and round, in 
frantic efforts after its own tail, we shall be witnessing 
conduct not much more irrational than police methods of 
dealing with men. Now in the Future there will be no 
ordinary crime. This I predict with quiet confidence. 
Calamities indeed will ever come ; the great world-doom 
of death, the deep soul-pain of parting ; a certain amount 
of madness and disease, and perhaps smouldering Berserk 
outbreaks of individual jealousy and hatred. These will 
be with us to the end of time, but prison populations will 
have passed away ! 

Utopian as this opinion may now appear, it is advanced 
through sober reasoning. Rousseau was doubtless right 
when he declared that it required much philosophy for 
21 321 



322 A HISTORY OF PENAL METHODS 

the correct observing of the things before our eyes. For 
it is never an easy matter to look ahead over local sur- 
roundings. I mean perhaps, rather, to think ahea.d. 
The great majority of people imagine that the precise 
conditions of their place and period form the real 
bed-rock of the universe, merely suspended by somatic 
dissolution, to be resumed " up-stairs " for all eternity. 
And the remaining minority is for the most part quite 
made up of dreamers who try to " think " those things 
for which they hope. 

Y But all the admitted evidence of the Past appears to 
me to point to two plain facts. The terrible changeless- 
ness of human nature, which rises above the tiger and the 
ape through periods of almost geological immensity ; and 
the responsiveness of people to environment, whereby the 
strongest customs and conventions are swayed about 
almost beyond belief. But the unchanging quality of 
human nature enables us, to some extent, to tell how it 
will act. We learn by history, and through experience, 
what has been done upon Mankind's long march. From 
this, as regards the main stream of the multitude, we can 
predict responsion to surroundings. Nothing occurs by 
miracle or malice.' If we can forecast the social con- 
ditions, it will be easy to map out the crimes. 

V It has been well remarked by Herbert Spencer that we 
best notice how the clock moves round, by recollecting 
where the hands had previously pointed ; constant and 
universal^ as crime now may seem to be, we have but to 
look back a little way, to notice other customsalso setup by 
surroundings, which, all through their prodigious periods 
of operation, must have appeared at least as ineradicable. 

1 Criminals " are neither accidents nor anomalies in the Universe, 
but come by laws and testify to causality, and it is the business of 
science to find out what the causes are, and by what laws they work." 
H. Maudsley, Responsibility in Mental Disease, p. 28. London, 1874. 

' But only where creating conditions prevail. There are many 
primitive communities scattered over the world which possess no penal 
machinery, and which are practically crimeless. 

The true curse of the savage is never lawlessness, but superstition. 
On the island of Minnikoy, to give but a single instance, some four 
thousand people manage to live in peace without poHce or prisons of 
any kind, although they are not free from disease. Vide A. Alcock, A 
Naturalist in Indian Seas, p. 189. There exist innumerable references 
much to the same effect, but they are far too general and scattered to 
find inclusion in the present work. 



THE DIRECTION OF REFORM 323 

Thus among many tribes of savages, war is the natural 
and usual state. ^ It was so once even in England, where 
every village stood within ditch and rampart, and when 
a stranger coming across the forest mark, or border, had 
then to blow a horn to give note of his presence,' on pain 
of being shot down as an enemy.' A law of King Wihtraed, 
for instance, was that " if a man come from afar or a 
stranger go out of the highway, and he then neither 
shout nor blow a horn, he is to be accounted a thief 
either to be slain or to be redeemed." * Later the whole 
wide land was filled with fortresses ; perched on the hills 
or ciactured with deep dykes, their drawbridges were 
raised every night, and casques of iron glittered from the 
battlements. The chiefs and all the free men carried 
arms, whether the seax of the invading bands, the lengthy 
rapier of the cavaliers, or the elegant " small sword " of 
the eighteenth century. Had men not always worn 
weapons about them ? could people then conceive that 
this would cease ? Yet but a turn of the great social 
wheel was wanted, for the whole habit to be laid aside. 
The city gates are now nothing but names, and it may 
sound superfluous to say, that the rich towns and open 
villages have ceased to dream of organised attack, while 
Norman keeps are ivy-covered ruins and moated castles 
quiet homes of peace. The swords and bucklers which 
our forbears carried were tokens of those restless tribal 
times. The stately, many-towered, feudal strongholds 
tell of rough ravine and baronial faction-fights; and 
those blind prison walls that stand to-day bleakly bear 
witness to a silent strife, and indicate an economic war. 
And who can wonder they must needs be there, while 
the wild scramble for the coinage lasts, while the successful 
gambler grows rich, and success waits upon ungenerosity ? 
Prisons will stand while unrestricted " competition is the 
foundation of our social order." ' 

The regulations that were once enforced by many 
mediaeval laws and customs, to mitigate the ruthlessness 

1 Meiklejohn, Hisf., vol. i. p. 87. 

2 J. R. Green, Hist. English People, vol. i. p. 6. London, 1894. 
J. Finnemore, Social Life in England, p. 3. London, 1902. 

' G. Allen, Anglo-Saxon Britain. London, 1881. 

* T. Wright, Hist, of Domestic Manners, p. 78. London, 1862. 

5 R. T. Ely, Evolution of Industrial Society, p. 97. New York, 1903. 



324 A HISTORY OF PENAL METHODS 

of the possession-struggle, were dead and buried centuries 
ago. In 1539 the monasteries were suppressed, in the 
succeeding reign (Ed. VI.) the Lord Protector, Somerset, 
seized on the Guilds. The common lands were more 
and more enclosed. Gradually manor and farmstead 
ceased to be self-suf&cing, and each man's avocation 
became specialized. 

Times of transition must entail displacement, and in 
such periods of dislocation workers suffer. One of the 
greatest changes that ever came over the whole wide 
world was set up at the harnessing of steam. ^ When 
Adam Smith used the word "manufacturers," he was 
referring to a number of small craftsmen, who were 
individual workers. But with the advent of niachihery 
the term soon came to mean employers of labotur, hirers 
of hundreds and maybe thousands of men and women, 
who worked in droves amidst the plant of vast establish- 
ments. For then indeed a new Power had come; the 
Genius of the Lamp appeared to be man's slave, and falling 
into bad hands, it was to prove, at first, a frightful source 
of evil. 

What may be called the old parochial barriers were 
henceforth to be swept away. The master lived no longer 
near his men ; his " human " side was lived apart else- 
where, and sometimes blossomed in far-off philanthropy, 
but he would drive his slaves by deputy, and know them 
only as the numbered " hands." ' 

AH obligation, duty, citizenship was set aside in the 
first rush for gain.' The industrial life of the home and 
the vUlage had come to an end : the corporate life of 
the Nation had not yet begun ! 

But we have moved in very many ways far from those 
early and most evil times, of the " free " contract and the 
enslaved man ; and if the old homestead-ties had to be 
broken in the on-rush of the railways, some most pernicious 
artificial barriers were levelled down as well. For towns 

1 Ely, Industrial Society, p. 19. 

2 Ibid. p. 18. 

3 \Vliat would these mean and grasping men of business have thought 
of the rule of Aquinas ? — " Negotiare propter res necessarias vitae con- 
sequendas omnibus licet ; propter lucrum vero, nisi id sit ordinatum ad 
aliquem honestum iinem, negotiare ex se est turpe," — Summa Theologica, 
Secunda Secundae, quaestio yy, art. 4, quoted by P. Houghton Brown, 
"Trade Regulations in the Middle Ages," Law Mag. and /?«;., Feb. 19O4, 



THE DIRECTION OF REFORM 325 

and shires have been linked up together ; ' we scarcely 
realize that Squire Western swore in " Zomerzet," and 
rival counties which were formerly hostile are drawn 
close within the commonwealth. Even the classes tend 
to fraternize : the London Tube, for instance, has no 
class. The old discreditable Town-Gown brawls have 
grown harmless as a Guy Fawkes day, on which most 
aggravating anniversary all that is left of them still 
fizzles forth. 

And though the population is not yet free from anti- 
social groupings,' yet such antipatriotic toasts as " Bloody 
wars and quick promotion " and " Our best Client, the 
man who makes his own Will," have, I am told, been 
quietly abandoned. These little things are straws upon 
the stream, and for the progress-current augur well. 
But yet the stem and unavoidable problem which science 
and machinery have set before civilization — the just 
producing and distributing of wealth — has to be solved 
for crime to disappear. 

Vast and most controversial acts of State become 
involved in such a supreme question, and lie outside the 
scope of criminology. At the same time we must clearly 
remember that no possible prison system will ever make 
an end of wrong-doing while crime-creating causes operate 
outside. It may be urged that conduct will depend 
on character ; that Man is a moral being able to choose, 
and that he ought to be above environment. But 
abstract theories on imaginary " Man " break down 
before humiliating facts ; and while in all times isolated 
individuals have achieved greatness, both for good and 
evil, we never find heroic populations ; average people 
are but creatures of conditions, and will be moulded as 
surroimdings shape them. 

» How isolated they once were, may be perceived in the strange 
dialects and in the varied weights and measures which hnger on into 
the present time (1904) ; and also in the truly savage notion that once 
prevailed in remote provinces, that the words " enemy " and " stranger " 
meant the same thing ; hence the old skit on the subject of brickbat 
throwing. 

s The presence of Group-Parasitism has ever been an incubus on all 
the great civilizations. For some English instances see Lecky's Map 
of Life, p. 118. „ J • 4. 

Corrupting classes, such as detectives and prostitutes, are caUed mto 
existence by the deplorable conditions under which we still live ; both 
offshoots of vast economic problems 



326 A HISTORY OF PENAL METHODS 

In fact, the tendency of modern teaching has been to 
shift the seat of criminal responsibility; and, passing 
by the " Devil " and " depravity," to fix it heavily on 
States and laws. 

" II delitto," says an Italian authority, " come tutti 
le altre manifestazione di patologia sociale, e il portato 
del sistema sociale presente." ' 

Quite as emphatic on this point is Dr. Maudsley : 
"It is certain, however," he says, " that lunatics and 
criminals are as much manufactured articles as are steam 
engines and calico-printing machines, only the processes 
of the organic manufactory are so complex that we are 
not able to follow them." ' 

WeU may we say then, " Lead us not into temptation ! " 
because in practice it is clearly shown that, whenever the 
stress rises above, or the resisting-power of the individual 
sinks below the normal, commonplace people will most 
certainly succumb. 

Heroes and martyrs are a race apart ; they have 
always existed ; they wiU be sent for ever from the 
Unknown, to lift life's burden and endure all things. 
Likewise the greater criminals of the world belong to 
Nature's aristocracy of strength.' But the mere multitude 
are not of these ; they do not reach superlatives in any- 
thing ; they may float, but not swim ; they may sink, but 
do not dive ; they may wish, but cannot will. Goaded by 
competition, they have been made selfish, duU of imagina- 
tion, they are often cruel ; groping for good through 
labjnrinthine error, the people mean weU, but have no 
strength in them. 

But let us take some illustrative instances to show our 
theories have been forged from facts. The Post Office 
forbids us to send coin in letters. Why ? Because its 
himdred thousand averagely-honest workers wiU keep 

' E. Ferri, Socialismo i Criminalitd, p. 9. Turin, 1883. 

2 H. Maudsley, Responsibility in Mental Disease, p. 28. London, 
1874. And see also J. von Kan, Les Causes iconomiques de la Crimi- 
naliti. Paris, 1903. 

' For Nature is most hopelessly unmoral ; she looks to the end, but 
cares nought for the means. The world rewards according to success, 
thus many men of somewhat similar qualities, are very differently 
niched in history. Take away trappings and the pomp of power, and 
through the course of ages men might wonder which was the criminal 
and which the king. 



THE DIRECTION OF REFORM 827 

from stealing with pre-planned design, who yet might 
prove unable to withstand the chink and pressure of 
unguarded gold. But if the seductions of civilization 
threaten, in this and many other instances, to overcome 
men's common honesty, much more intense and terrible 
are organic desires. How many boats' crews of good 
British sailors have drifted days over the pathless deep, 
consumed with hunger, rendered wild with thirst ! And 
to what have these sane and typical Europeans been 
repeatedly driven under the stress of such intolerable 
sufferings ? To nothing less than carmibalism and 
murder. So weak is human nature, or so strong is human 
need ! In truth, most criminals are made rather than 
born. Leaving out leaders, thinking in big numbers, we 
may assert that the great mass are made : the rest are 
the afflicted. This view is summed up in the celebrated 
saying: "Society has just those criminals that it deserves." 
One clear and obvious example of circumstantial crime 
created by Society is furnished by the " Resurrectionists." 
Those very unpleasant products of eighteenth and early 
nineteenth-century social conditions, have now become 
so utterly extinct that the name sounds like that of some 
religious sect. But once their calling was a grim reality,' 
and body-snatchers formed a section of the criminal 
community, just as the far more parasitic coiners and 
receivers did. Nor were the exertions of this pariah class 
always confined to dealings with the dead. The medical 
profession set such store by carcasses, that criminals 
resolved to come by them : failing the ordinary " trades- 
men's" methods— which although largely winked at, 
were yet most felonious — they did not hesitate at times 
to strike and kill. Thus those uncommon scoundrels 
Burke and Hare traded in bodies about 1828,' and more 
than sixteen murders were ascribed to them in Edin- 
burgh. And Bishop, whose work lay round London just 
a few years later, owned to having furnished full five 
hundred corpses to the surgeons, and when condemned to 
death confessed to perpetrating sixty murders.' Thus 

» See T. B. Bailey, The Diary of a Resurrectionist. London, 1896. 

a See for instance, G. MacGregor, The History of Burke and Hare. 
Glasgow, 1884. , 

» Arthur Griffiths, Mysteries of Police and Crime, 1. p. 304. London, 
1898. 



328 A HISTORY OF PENAL METHODS 

it is clear that many a dark deed was done because the 
surgeons needed bodies. 

The time had passed in which the practice of dissection 
was thought a ghouUsh act of sacrilege ; but the day had 
not dawned (nor has it yet approached, for everything) 
in which unpleasant problems were to be met and wrestled 
with in honesty and reason. The ruling classes knew 
corpses must come, and let them be raised by stealth 
out of the darkness : limp packages were hurried through 
doors, and whispered of as " something for the Doctor." 
Thus a repulsive but a necessary undertaking was left 
to outcasts and made criminal. 

But this particular form of crime should teach us much, 
since it has been suppressed. The penalty was death, 
and yet the practice flourished uncommonly upon that 
punishment. What then was done to bring those crimes 
to end, we ought to mark, for such events are rare ! Was 
there some special terror invented ? Had there been 
found, what no dark, dripping cell ever contained, or 
inquisition forged, at last the penalty which would 
deter ? By no means ; but for once the State attacked 
the root and so dug up the evU. What set men on to 
violate the tombs ? A keen and strong demand, seductive 
gold. Demand creates supply ; the economic drive, 
that modern lash, draws sables from the snows, orchids 
from deadly swamps, men into poison-fumes, young girls 
from home, bodies alive or dead ! And this impelled 
the diggers from their beds to steal abroad and grope 
among the graves. It could not be, nor was it, punish- 
ment that banished body-snatching from oiu- midst. 
Constructive legislation wrought the change. The need 
for the supply, so long tacitly known, was recognised 
and satisfied. By the Anatomy Act of 1832, bodies 
thenceforth were got by lawful means. And so the 
crime society had created quite vanished, and the dead 
were left in peace. 

It is, then, to the social forces of reconstruction and 
organization, and not to the barren negation of un- 
profitable punishment, that we must look to cleanse the 
land from crime. This is no smooth and comforting 
conclusion ; it has been always so much easier to gild 
and garnish piimacle and spire, than to dig down and look 



THE DIRECTION OF REFORM 329 

to the foundations— that slow and costly underpinning 
work which all householders dread, but which must yet 
be done. There should indeed be penitence and reforma- 
tion, and not the least in us, the whole Community ! 

For " in our haste to manufacture ' things ' we have 
forgotten the manufacture of men." ' Rather, it might 
be said, that the competitive countries have come to 
look upon the population as a factory-made product ; 
mere units turned out wholesale, like machinery-made 
articles ; mites to be moved en bloc by government or 
demagogues. Thus in the conflict for control and power, 
no one remembers that the masses are men ; it were an 
empty mockery to maintain that they are looked upon as 
being equal fellow-citizens and brethren. 

But there is nothing new in this — the Assyrians and 
Egyptians raised some tremendous monuments with 
their slave labour — except the extent and centralization 
of modern industry, set up, and for the first time rendered 
possible, by the employment of machinery. All the 
great Empires, all the great Republics, all human com- 
munities which had outgrown the immediate tie of the 
Clan-bond and the parochial sense of common causes and 
union ; all states and tribes in which the play of indi- 
vidual human feelings and affections became no longer 
geographically possible — and most particularly those 
huge steel-clad nations distraught by hunger-driven 
internecine competition — have ever been unmindful of 
their People ; indeed a really altruistic State remains 
Utopian, and has yet to come. 

Much has been done ; far more than yet has been 
approached, remains to do. It is not in my present 
place, or power, to summarize the evils of our social 
system, of all this anti-social chaos called civilization. 
Twelve millions on the verge of starvation.'' Thirty 
thousand tramps and vagrants.' Over a hundred thou- 
sand people shut up as insane; ♦ besides the wide-extending 

1 Ernest Crosby, Tolstoy as a Schoolmaster, p. 89. London, 1904. 

2 See quotation from the speech of a distinguished statesman, 
Saturday Review, Jan. 16. 1904. 

3 Statement by President of Local Government Board. See Datly 
Chronicle, Feb. 24, 1904. 

« Officially certified 117, 199. See Report of the Commissioners in 
Lunacy for E. and W., p. 4. London, 1904. 



330 A HISTORY OF PENAL METHODS 

outer ring of half-mad and deranged. Truly it must 
fare indeed but ill with this vast body of our fellow- 
citizens. 

And what of the youaig ? Neither the burden of crime 
nor the curse of drink can be laid to their charge ; where 
do these precious yoimg "plantations" grow? how is 
the nation starting them upon the way ? It has been 
said that in London alone there are some sixty thousand 
children ill fed and defective.' But besides there are a 
neglected multitude, living in dirt and incubating maladies. 
" In many cases," says an official Report, " the children's 
clothes and bodies are infected, vermin being concealed 
in every seam and clinging to their skin, and there is 
little doubt that houses and furniture must also be 
affected." ' 

With a large section of the population brought up 
amidst such horrible smroundings, we need not wonder 
at degeneration and deformity. True, there are splendid 
hospitals for the " completed " patients, but the mischief 
has been done long before. Thus, out of 12,292 would-be 
recruits examined at St. George's Barracks, London, 3,908, 
or over 31 per cent., had to be turned away for Various 
infirmities. Six hundred and seven were found deficient 
in chest measurement, 600 in weight, 457 in eyesight, 
369 in the veins, and 322 in the teeth. The remainder of 
the rejected were suffering from various other troubles, 
which can be seen set forth in the official document.' 

With these kind of conditions more or less chronic 
among the lower strata of the towns (and 77 per cent, of 
the population is said to be urban now) * we cannot be 
sm-prised that there are steps stUl downward. Dark ways 
indeed, whence hardly any return ; branching amidst 

1 Quotation from Sir William Anson, Daily Chronicle, Jan. 6, 1905. 

2 Annual Report of the Medical Officer of the late School Board for 
London, p. ii., L.C.C., March, 1904. 

On this point see also Honnor Morten, Consider the Children, 
p. 7. London, 1904. 

Also Charles Booth, Life and Labour of the People of London, final 
volume, p. 89. 

» See Royal Commission on Physical Training Report Appendix iv. 
London, 1903. 

See also article by Sir Frederick Maurice, " National Health," Con- 
temporary Review, January 1902. 

* A. Watt Smyti, Physical Deterioration, p 55. London, 1904. 



THE DIRECTION OF REFORM 381 

the sewers of the sub-stage, into the blurred blind alleys 
of despair. I have some such records in my case books.' 
A man is taken out of the police cells to the magistrate, 
who is too horribly filthy even for the dock, and so is 
tried out in the open yard. Only last summer a number 
of more or less degraded and verminous people were 
turned out of the parks: the press rejoiced as if some 
reformative scheme had really been evolved. Nobody 
knew, or cared, where they were driven to, but the human 
dust was shaken up and shifted, as by a careless house- 
maid in a room ; and fell down somewhere else ! And 
this measure is typical of all those negative and super- 
ficial processes and " crusades " which Herbert Spencer 
has so well compared to the mere kicking in of a brass 
pot, on which it bulges out the other side ! We see again 
the " moving on " system, which Dickens pictured with 
his master hand. " 'Where can I move to ? ' Jo cries 
out in desperation. ' My instructions don't go to that,' 
replies the constable. ' My instructions are that this 
boy is to move on ' . . . and pointing generally to the 
setting sun, as a likely place to move on to, the constable 
. . . walks away." ' 

The State has acted just like its dull minion ; has 
walked away and left the problem lying — truly a master- 
piece of " brass pot " policy ! The State would not admit 
that there was a problem, it simply preached " self-help " 
— the only sort of help it understood — and " save your- 
selves." This is the last cry in catastrophe ! How 
should the weaker individual units solve social questions 
the community recoiled from ? 

They did not, and in dumb response there spreads 
before our eyes the battle-field of ruin. One winter's 
night (Jan. 29, 1904), the^L.C.C. officials found nearly 
two thousand wanderers, trudging the streets or crouched 
in nooks and archways.' And there is yet a colder 
habitation— all of us know about the Morgue in Paris ; 
many a time I speculated there, upon an awful silent 
company collected : poor derelicts, who, in the sea of 
shams, had foundered on that grim rock of reality. There 

' For instance, Private Case Booh, iii. p. 37- 

2 Bleak House, chap. xix. 

3 See Daily Chronicle, Feb. 29, 1904. 



332 A HISTORY OF PENAL METHODS 

are some thirty mortuaries in London ; we do not talk 
about or show such things, but they are there, like all 
else good and evil, in this vast centre of the works of man. 
Thence, and from wards and workhouses, there come the 
nameless bodies for the hospitals, whose histories and 
troubles none can know. Many so outcast in the hurrying 
world as to have had no value till they died : only the 
searching knives of the dissecting rooms proclaimed 
their kinship with humanity. 

Yes, there is much to do. For we must grapple with 
four potent crime-causes : want, waste, competition, 
and drink. These evils act, and react, on each other. 
Poverty may be honest ; wealth, once acquired, may be 
honourable; but whenever poverty and wealth dwell 
side by side, crime is as sure and certain to evolve as are 
the two parts of a seidlitz powder to effervesce and fizz 
when they are poured together. 

Competition is war, and worse — it is a fight within the 
nation-fold. Drink degrades all. It may be said that 
these statements are truisms. I would reply that they 
express the truth ! Prison reform really means social 
reform ; it would be strange indeed if our regeneration 
came from the weak and wayward inmates of our prisons. 
No, it is not the " failures " who will solve the profound 
problems of civilization, but the best intellects of Europe 
and America. All these long years we preached to the 
poor prisoners, bidding them bear the burden and walk 
straight : we might have known that to be impossible ! 
The State alone, by strong and sustained efforts, can lift 
the load of long neglectful years. A tremendous task : 
yes, even for the State, because it means that we should 
bring to use, burn, cleanse, repair, put right, set in its 
place, the litter and the deejJ^decay of centuries. 

" The evil that men do lives after them." And we 
inherit from the inhuman past social as well as physical 
diseases, that men have made, which never need have 
been. Thus those slave ships, conveying their living 
cargo, carried the curse of " colour " to America, setting 
up slavery and civil war, leaving a problem which is 
yet unsolved. So the mean slum indifference allowed, 
grows to a complex vested interest that may cost millions 
to posterity. These are but large examples out of many 



THE DIRECTION OF REFORM 333 

None need invoke religion to perceive that fathers' sins 
are visited on children. This is not (appreciably) a moral 
law, but a physical fact. 

Besides that piled-up burden of taxation, which is 
expressed in silver and in gold, there is a deeper, rnore 
destructive debt, which, like the smoke-fog or miasma from 
corruption, rolls an impenetrable blight over civilization. 
An old account, our forefathers incurred, but which stern 
Nature sends in to the Nations, and will exact through 
glacier-grinding power, with unremitted age-old interest. 
Of many items, but yet all expressed in that one word 
which bars men out of Eden, and builds up a blind blank 
wall between us and Utopia : and that one all-comprising 
word is, " Selfishness ! " 

We cannot indeed expect to alter human nature ; but 
we can alter the eliciting surroundings. That there are 
depths of wickedness in men, we ought to know, since our 
civilization urges to effort, not to altruism. But there is 
untold goodness in them too, which even competition 
has not killed. All possibilities of love and hate lay 
hid and sleeping in the children's souls ; what has Society 
invoked and stirred up into action ? Decidedly the 
anti-social qualities 1 Our life, as Herbert Spencer 
pointed out, involves the continual searing of the sym- 
pathies. In practice we have penalized compassion, we 
have imperilled generosity, we have exalted exploitation, 
we have rewarded gambling and greed. And after this 
shall we rail at results ? 

But we must do something more than raise a jeremiad. 
If I have dwelt so much upon social surroundings, it is 
because they underlie our problem. To apply prison 
systems to the criminals, and leave at large the terrible 
temptations which beset pesople struggling in competition, 
is, as it were, to stop an uncleansed tooth. To treat 
the captured, yet neglect crime-causes, is just as if, in 
an eruptive fever, we spent our efforts in anointing 
spots ! The surface rash is not the cause of illness, but 
an effect of the internal poison. Likewise the prisoners 
are but outward signs of inward troubles which torment 
the State. 

Once again, the criminal is the outcome of causes : he 
is mythologically the offspring of Ignorance and Injustice, 



334 A HISTORY OF PENAL METHODS 

and, practically, the worst kind of waste-product. But 
the especial feature of the age of science has been pre- 
cisely the employment of all wastage. It was from heaps 
of disregarded rubbish, the very flotsam of a factory, for 
which the owners were surprised to get the offer of a 
halfpenny a pound, that Lister made his fabrics and his 
fortune. It is from dust destructors, burning filth and 
refuse, that electricity is being generated,^ while from 
the remnant clinker they get bricks and concrete. In the 
great manufactories, especially in Germany, chemists 
are kept continually experimenting, to turn all debris 
to the best account. The fate of a whole business may 
hang on how the by-products are put to use ; in fact, 
no process is considered satisfactory where anything is 
wasted, cast aside. If then so much lay hid in the very 
refuse, if men have made the silk-waste into wealth, and 
turned the offensive dust-heaps into light and power, 
can we do nothing better with oxir brethren than shut 
them up to pine away in cells ? In very truth we can ; 
we have not really tried. When, in the Future, a criminal 
has been convicted, and is set aside for treatment, we shall 
have thought out what we aim at doing, because the State 
will either mend or end the prisoner. We must, upon 
the very watershed of ways, clearly determine on the 
answer given to one great question : Do we intend to 
replace this man, or this woman, back into society and 
citizenship ? Is he, or she, amenable to treatment at 
all ? can we, in fact, ever forgive the prisoner ? Now we 
must face this question honestly, because all hangs upon 
the answer we shall make to it. Say we will never 
pardon ; what remains ? Nothing for us to do, but only 
death. The old proverb is wise, " we can but hang the 
dog with the bad name." But if we conceive a new 
name can be earned, if we attempt a therapeutic process, 
let us be thorough and conduct it well. For reason 
would that we should either end or mend a man. 

At present we do neither of these things — we only 
brutalise and maim the criminal. Magistrates mete out 
measured punishments ; but all the nations have diver- 
gent laws, and individual judges sentence differently for 

1 See for instance W. P. Adams, Paper read before the Institute of 
Electrical Engineers, Dec. 1904. 



THE DIRECTION OF REFORM 335 

the same crime, urging all sorts of reasons for the penalties 
which they impose.' And while the theories advanced 
in support of punishment (always put forward in the 
later periods, since punishments arose from the revenge- 
iastinct) have been so numerous and so entirely con- 
flicting,' we cannot wonder that, in our rough-and-ready, 
hasty, wholesale application of them, we do not definitely 
aim at anything, and seldom or never amend anybody. 
For I repeat we do not end or mend, we merely maim and 
mutilate a man. 

But in the Future, when the Courts convict a prisoner, 
he will not merely disappear from view, to undergo a 
senseless, indiscriminating punishment. He will not, in 
fact, be punished more than any other patient ; but he 
may have to undergo a course of treatment varied accord- 
ing to his special need, which may, or may not, be 
painful in its operation.' The difference between the 
cut of the surgeon and the stab of the assassin lies mainly 
in the motive which made the wound. They will inflict 
no moment of unnecessary suffering ; if they have to 
give any pain, there will be purpose in it, and a friendly 
purpose.* 

The Courts may have settled what the prisoner has 
done ; but the State will find out wherefore he acted so. 

1 See for instances: 
A. R. Whiteway, Penal Science, pp. 15 and 19. London, 1902. 
Edward Carpenter, Prisons, p. 12. London, 1905. 
H. B. Bonner, The Gallows and the Lash, p. 14. London, 1897. 
C. S. Darrow, Resist not Evil, ch. xi. London, 1904. 

* Compare — 

Lord Auckland, Principles of Penal Law, p. 7. London, 177 1. 

Sir J. Stephen, Criminal Law, p. 39. 

W. S. Lilly, Right and Wrong, chap. v. 

St. Luke vi. 37. 

Sir W. Kennedy, Law Mag., Nov. 1899. 

Chief Justice Cockburn, Royal Commission, p. 86. London, 1863. 

E. Westermarck, The Origin and Development of the Moral Ideas. 
vol. i., ch. iii. London, 1906. 

C. Mercier, Criminal Responsibility, p. 13. Oxford, 1905. 

R. M. McConnell, Criminal Responsibility and Social Constraint. 
' " To a diversity of ills we must apply a, diversity of remedies." — 
Dumesnil, quoted by Ferri, Crim. Soc, Morrison's trans., p. 222. 

And see Whitway, quoting Prins, Ferri, and Garofalo. " Social 
evils require social cures." Penal Science, p. 49. 

* "There is a great difference between Society protecting itself, 
and Society punishing the criminal. The whole attitude is different." 
— Edward Carpenter, Prisons, Police and Punishment. 



336 A HISTORY OF PENAL METHODS 

We shall ponder the man, reviewing all his past — even, as 
far as may be, his heredity and upbringing,' and we shall 
do our best to classify his case along the lines alluded to 
elsewhere.' For this the nature of the crime committed 
offers the plainest prima-facie clue, although, as we have 
previously seen, there may be complex " overlapping " 
instances. 

First, it will be asked if the offence was comprehensible: 
that is to say, whether the act was one which would have 
tempted ordinary people to have done likewise in a 
similar position. This really is a most important point, 
as it may alter the whole aspect of a case.' 

Next, was the act a deliberate one ? There is a great 
distinction to be made, between sudden lapses due to 
temptation accidentally coming in the prisoner's path, 
and deeds which he plans and sets himself to perpetrate. 
The coiner working with elaborate plans, in what might 
be a fitted laboratory, the burglar using scientific tools, 
the swindler laying carefully hatched plots, are much 
more dangerous, as well as (apparently) cxilpable, than 
ordinary law breakers. The third question arises from 
the foregoing, and it will be a crucial one for our prisoner's 
future. Did he commit a parasitic act ? Does this man 
live and prey on the community ? And if the reply be 
" Yes," to these three questions, how will the State thai 
deal with such a man, when it is fortimate enough to have 
really secured him ? Now such a prisoner is a true 

1 On this point Sir Robert Anderson has written: " In our day it 
is not the disease the physician considers, so much as the patient. . . . 
The question should be, not what the prisoner did on the date specified, 
but what he is." — Nineteenth Century, Feb. 1901, p. 278. 

Mrs. Ballington Booth also observes, " It is the man we are dea.ling 
with, and not the crime " {After Prison What ? p. 272). And see White- 
way, Penal Science, p. 52. 

3 See Chapters XVII. and XVIII. 

^ Some few years back a servant was dismissed, on which he ran a 
pitchfork through the horse under his charge. The man was a criminal, 
acting on a cruel, mean, and yet conceivable motive : to be revenged 
upon liis mistress. 

But in another case a horse was found, wounded and bleeding, in 
its owner's field. No quarrel, no revenge, no rational motive. Some 
person had been engaged in these horrible practices all round the 
neighbourhood for the mere lust of blood. Yet here was no criminal ; 
the worst ruffian in England would not have committed these outrages, 
because he could not possibly have wanted to. The offender was the 
victim of a monstrous overmastering passion ; most likely he was 
sexually insane. 



THE DIRECTION OF REFORM 887 

criminal ; that is, he is a human parasite. I do not say 
he is the worst of men, for we are not concerned with 
moral judgments ; there may be viler lives no laws can 
reach ; we, the Community, may be responsible. 

But he is, to a certain extent, a coercible ' criminal, 
and therefore of great importance to the criminologist. 
To hold, or imply, that any one goes wrong for the mere 
sake and joy of evil-doing, is to show little knowledge of 
our nature, and also most absurdly to endow the criminal 
with a disinterested singleness of purpose, the like of 
which never occurred to him. But no one can go through 
life with open eyes, and not be weighted with the sad 
conviction that men abound with no care for their kind, 
with little love except for sordid self, ready to batten 
upon anything. 

The man we have just imagined was one of these. He 
acted Comprehensibly — he did what the average person 
might have been tempted to do ; some wishes all of us 
would gratify, if we were not restrained by conscience or 
the consequence. 

He acted Deliberately. Only the scheming rogues can 
be deterred, and only they should be severely dealt with. 

He acted Parasitically — thus sacrificing others for 
the benefit of self. 

In all such cases the State will endeavour to put self- 
interest in place of altruism. Truly a poor and sorry 
substitution, for, as was so well said by Herbert Spencer, 
none can get golden conduct out of leaden instincts. 
Yet, when a man thinks only of himself, we must take 
care that anti-social conduct affects that "self " and 
recoils upon him. He must be made to feel it does not 
pay. Laws need not be made vindictive to do this. The 
calculating criminal is the hardest to catch, but the 
least difficult to deter. We have but to make the balance 
of results just unfavourable to the crime's commission, 
and the contriving criminal will keep away.' 

' In a tabular form we may classify thus : 

Coercible Crimes are Undeterrable Acts are 

Comprehensible Impulsive 

Deliberate Passionate 

Parasitic Physiological 

2 But the real difficulty is to capture him ; the very genius of com- 
petitive " enterprise " is to exploit men in a legal manner, 

22 



338 A HISTORY OF PENAL METHODS 

Although the case which we have been considering was 
hypothetical, yet a large class of predatory people exist, 
and differ only in degree. In actual life the devils oi 
the melodrama, the " all blacks" bent on mischief foi 
itself, do not occur ; but there are many selfish folk, who 
for their own advantage will do anything; there are 
plenty of parasites. Of these the worst will most likely 
escape, but smaller fry who had the will to rob but not 
the brains to do it cleverly, will fall into the law and be 
condemned by it.' 

Men who have forged or coined, stored stolen goods, 
or spread their nets abroad for the unwary, persons who 
live by systematic exploitation, professional burglars 
and habitual thieves, must, one and all, be made to feel 
and know that these were not the ways to elude work, 
that these were not the means to live in luxury. The wise 
old principle of Restitution must guide again. 

The old and obvious idea was Like for Like.' Then 
there arose the vague and quasi-metaphysical conception, 
Pain for Wrong. 

Now Like for Like would be the Ideal Justice ; and 
though it is really unattainable by man, yet it was always 
aimed at, and to some extent approached, in the im- 
mediate and " poetic " pimishments of the early days, 
which gave expression among primitive peoples to the 
all-life-including instinct of retaliation, which is seen 
also in the animals. There was some ground for these 
picturesque punishments, cruel and bloody though they 
sometimes were. At least they had been short, sharp 

1 The degree of responsibility for, or guilt of, an action may be, to 
some extent, determined by the probability, or otherwise, of its success- 
ful accomplishment. I recollect two cases which occurred within a few 
years' interval at a provincial town. In each of these the criminal 
made off with funds that totalled into tens of thousands ; neither was 
ever caught. A better-known offender, one who fleeced in millions, 
would have got clear, but that the Government itself pursued him with 
new extradition treaties, and brought him back to suffer a long sentence. 

' Observe the primitive attempt at this, as shown in the earliest 
known Code. " 209. If a man strike the daughter of a free man . . . 
"210. If that woman die, his daughter shall be slain. 
" 229. If a builder has built a house for a man . . . and if that houee 
falls and kills the householder, that builder shall be slain. 
" 230. " If the child of the householder be killed the child of that 
builder shall be slain." Chilperic Edwards, The Hammurabi Code. 
London, 1904. And see Westermarck, Origin of Moral Ideas, i. p. 418, 
etc. London, 1906. 



THE DIRECTION OF REFORM 339 

and conspicuous, and when they were not distorted by 
taboos or superstitions, they made a rough attempt at 
paying back in kind, which satisfied the human sense of 
justice. 

But Pain for Wrong as a deliberate philosophy is 
altogether false ; let us examine it. 

The common notion in support of punishment is that 
a crime has to be expiated. Now what is really meant 
by expiation ? Is it that the deed done should be blotted 
out ? That is impossible. No act, whether for good or 
evil, can be recalled ; effects must follow as the night the 
day, immutably. The past cannot be altered by regret, 
and punishment brings self-pity, not repentance, remorse 
perhaps, but never reformation. The hard and clumsy 
law can reach no heart ; it can give pain of course — that 
is always easy — ^but reformation dawns within the soul ; 
surely no man was ever raised through cowardice and 
fear ; the wise old East said centuries ago, " By oneself 
one is purified." ' 

There was much that was fine, and even heroic, in the 
olden-time vendetta. Ties of kindred, calls of comrade- 
ship, courage, devotion, constancy, self-sacrifice, came 
into action through these sanguinary feuds. But the 
strong State can claim none of these qualities. That 
which the individual avenger sought in the smart of 
injury, and in the vehemence of passion, the Law inflicts 
with cold-blooded relentlessness : where private revenge 
would long ago have ceased from shame or pity, the 
State still torments through the heavy years with un- 
appeased malignity. Punishment implies power, and 
power should surely be magnanimous. Dickens has well 
brought out this aspect of the case : " It was a sad sight 
—all the strength and glitter assembled round one help- 
less creature." ' Private revenge might fit a noble cause, 
and prove a duty though achieved in bloodshed ; but 
punishment only adds a cold deliberate wrong to the 
sad sum of all the evil forces that brought the erring 
individual to the shadow of a cell. 

Therefore the future must renounce attempts at ex- 
piation. Revenge is indeed sweet, often a balm to bitter 

1 Dhammap ada xii. 165. 
» Samaby Rudge, ch. xlvii. 



340 A HISTORY OF PENAL METHODS 

memories; whenever the injured individual could, he 
took it to the utmost. Even in modern times the old 
blood-thirst breaks out against notorious delinquents, 
and may give rise to worse acts than their crimes. But 
when the mighty State takes up a case, the hour is passed 
for outbreaks of ferocity. Hatred and passion-lust, of 
one or many, have no more place. There shall be order 
at the seat of Caesar ; wisdom and method must thence- 
forth hold sway. The question then to be considered in 
the future, will not be how to balance the past wrong 
by a supposed equivalent of inflicted pain, but how to 
remove the mischief that is working. 

Two objects will present themselves in dealing with all 
criminals in rational times : the compensation and 
assistance of the victim of aggression; and the treat- 
ment of the particular offender who did the damage, so 
that he shall not do the like again. ^ The compensation 
of the despoiled person for loss sustained has been enforced 
from the earliest times. It was enacted in the Hammurabi 
Code,' and the appeasing of the injvired party was the 
main purpose for which laws were made.' 

The custom could be traced throughout the world. 
Like most constructive methods of reform, the task of 
reparation is neither simple nor always indeed possible. 
Still nearly all deliberate crime relates to the desire for 
possession ; ease in luxury is what the criminal has in 
view at the expense of others. Healthy, hard, wealth- 
producing work in discipline and abstinence is what the 
State should carefully contrive for him. He must restore 
as far as in him lies what he has stolen, he must derive 
no riches from rapacity. 

But with the true, or calculating, criminal, all hangs 
upon the question of conviction. It is never the severity 
meted out to the captvued, but the certainty of being 
brought to book, which would deter, could code-makers 

1 See R. Salailles, L' Individualisation de la Peine, p. 12. Paris, 1898 

2 Paragraph 23. 

3 The question of compensation has been referred to by A. R. White- 
way (Penal Science, p. 26), and was discussed at the International Prison 
Congress at Brussels in 1900. 

See also Whiteway, Penal Science, p. 157. London, 1902. 
E. Ferri, Criminal Sociology, Morrison's trans., p. 224. 
S. E. Baldwin, Reparation for Crime (U.S.). 
Thomas Holmes, Known to the Police. London, 1908 



THE DIRECTION OF REFORM 341 

secure it. It is in dealing with the parasite that the 
deterrent side of treatment cannot be ignored ; still, when 
the social machinery becomes efficient, the temptations 
to crime will diminish, and the difficulties of committing 
it without detection will enormously increase. 

We must rather look forward to social reforms which 
have not been tried, than backward after savage penalties 
which have been worked and wreaked for centuries, to 
render the exploitation of the people difficult and prac- 
tically dangerous. But besides the true parasites, whose 
path the State will try to render fruitless and unprofitable, 
there yet remaip the so-called common criminals. 

Truly a mixed and woeful multitude ; in dealing with 
them we shall get further from the comprehensible, 
further from rational deliberation, further from (apparent) 
guilt, and also further than ever from the efficacy of 
deterrence. At the same time we shall be approaching 
the second, or impulse, group ; we shall enter the domain 
of drink and the blight of disease ; we shall reach, and pass, 
the borderland of reason, and watch the distorted wreckage 
of humanity through the cells and wards. The mass of 
the prisoners are not hardened villains — ^they are indeed 
only too pliable, and have little strength in them. They 
are mostly unbalanced, deficient, degenerate. They are 
weeds which have grown through social neglect. They 
are the stranded flotsam of society. They are ships 
without lead in their keels, which blow over at the first 
squall — and then seldom get right again. 

Even the Law looks on them leniently — except that 
it assumes in them a freedom of choice and action they 
cannot possess. More than half the people who go to 
prison are sent there in default of paying fines,' while 
even of those Who have to go to gaol,' more than 60 per 
cent, get but two weeks and under, and over 90 per cent, 
of all the inmates of the prisons are kept there not above 
three months.* 

I See Report of the Commissioners of Prisons, p. 9. London, 1901. 

a The figures for 1903 were: two weeks or less, 61 per cent, men, 
66 per cent, women. 

* Ninety-four per cent, of the men and 98 per cent, of the women. 
See Report of the Commissioners. London, 1903. 

See W. Haldane Porter, " Civilization and ' Crime,' " Pall Mall 
Gazette, Oct. 27, 1904. 

Evidence of Sir G. Lushington, D. C. of 1895, p. 401- 



342 A HISTORY OF PENAL METHODS 

Now it is evident that this shifting crowd, condemned 
to fines, or mostly, in default, to short terms of imprison- 
ment,' will be comparatively little affected by the pre- 
vailing system of their cells. The good of the short 
sentence mainly lies in its deterrent threatening of the 
disorderly, and in the stern " pull up " it forces on the 
prisoner. 

Unhappily we seldom secure this, without the sacrifice 
and ruin of the convicted offender, for prison is a desperate 
expedient. Doubtless it is deterrent to those outside 
(so far, at least, as regards crimes of Group I), and there- 
fore necessary in competitive communities; but while 
admitting its negative, or coercive, value, we yet must 
make it rescue those within. We must continue and 
develop the work which has been just begun in recent 
years ; treatment must be constructive, helpful, curative. 
We want to retain the " pull up " without the fatal 
subsequent " shove down." All this is easier to talk oi 
than to bring about in practice : social diseases and theii 
remedies lie much deeper than gaols. 

" Where are the head springs of Recidivism ? " asks 
an official report. " Doubtless in a large measure they 
are to be found in the social conditions of the genera] 
population," is its reply. " It is certain," continues the 
same report, " that the ages when the majority of habitua 
criminals are made lies between sixteen and twenty-one." 
The latest Blue Book from the Prison Commissioners 
written a decade later, still tells the same story ; " 40 pel 
cent, of prisoners convicted of indictable offences an 
juveniles under twenty-one." ' Such figures indicate oui 
national neglect. 

Conspicuous products of extreme bad training ar( 
Hooligans of various degree. These savages are foun( 
in all ranks of society — it is the punishments for thei 

' The crudity of that thick-headed old theory that there exisi 
equahty in punishments, is exposed here. Thus a man earning £$> 
a, year is smitten twenty times as hard as one who has 1^1,000 pe 
annum, should each of them forfeit a like amount. It has been we 
suggested that fines should be proportional to the possessions of th 
offender ; this proposal was carried at an International Congress a 
Budapest in 1905. See H. Joly, Problimes de Science CHminelle, p. 9; 
Paris, 1910. 

a D. C. of 1895, Report, p. 11. 

' P. C. Report, 1906, p. 17. 



THE DIRECTION OF REFORM 343 

excesses that seem reserved unto the poor exclusively. 
" Young men at Oxford," the Bishop of Stepney is re- 
ported to have said, " when they had had a jolly evening, 
made an infinity of noise and often destroyed a good 
deal of property that did not belong to them ; only next 
morning they were brought before a benevolent person 
like himself and got ' gated,' while young men in another 
rank of life were hauled up in the police comrt and were 
sent to prison." ' 

No doubt the " ragging " tendencies of the rich arise 
from parents' callousness, from defective education, and 
from the blending together of animal and ardent spirits 
in empty heads upon unemployed shoulders. The 
brutalities which occur from time to time in regiments 
and the universities could scarcely be outdone in the 
worst pturlieus of the cities, amidst surroundings which 
give infinitely more excuse for them. 

For though there are indeed brawlers and bullies whom 
the Community must curb and crush into sobriety, yet 
conduct which may be rough and lawless, or even vio- 
lently aggressive and mischievous, is often but youth's 
revolt against those artificial conditions of civilization 
which render the simple life of the fields and waters 
the most expensive and most unattainable of all. 
" The typical hooligan's mode of life is a revolt against 
the monotony of a city existence. He possesses some 
imagination. He longs for adventure. His misfortune 
is that, instead of being born in the backwoods, he was 
bred in a town." ' 

Yes, and the town has taken little thought for him. 
It has been stated that of the 1,500,000 young people 
under twenty-one,' belonging to the industrial population 
in and around London, there are less than 50,000 for 
whom the means of healthy recreation are provided.* 
It is upon such waste plots that wild oats grow." 

1 See Daily Chronicle, Nov. 7, 1903. 

2 The Speaker, August 1903. 

3 See report of address by W. H. Dickinson, Daily Chronicle, Jan. 29, 

• At the opening of the York Assizes the Lord Chief Justice declared 
that he knew of no cause, apart from drink, that led to more crime 
than young people idling about the streets.— Pa// Mall Gazette, Dec. i, 
1906. 

»■ James- Devon, The Criminal and the Commumty, p. 129. 



344 A HISTORY OF PENAL METHODS 

The young are nearer to the savage, and to nature, 
than elders are ; the blood-trail of the hunter appeals 
infinitely more to them than Wordsworth's clouds of 
glory ; we see this in the sort of books turned out for 
boys. Full of romance, adventure, energy ; these forces, 
if they find no healthy outlet, will probably make one 
of their own. " Coltishness," wrote Dr. James Devon, 
Medical Officer at Glasgow Prison, " is a more common 
cause of crime than is suspected." ^ " The British public," 
wrote the Rev. E. Husband of Folkestone, " is to a large 
extent responsible for the creation of the modern hooligan. 
I refer to the unkind, unsympathetic way in which the 
lads of the working class are generally treated in England. 
Scarcely is there a hand held out to them, although many 
of us who know these boys not merely by sight in the 
streets, but in their own private lives at home, know what 
kind and worthy hearts the majority of them have. 
The policeman is looked upon as the only suitable being 
to deal with them. If only our countrjonen would turn 
over a new leaf in this matter, and be kind and friendly 
and sympathising towards these lads, the hooligan, like 
the dodo, would soon become extinct." " 

Mr. Montagu Crackanthorpe, K.C., wrote on the sub- 
ject: "I believe that the radical cure for it does not 
lie upon the surface. It lies far deeper, and mainly 
consists in finding for the turbulent spirits amongst us 
an active healthy employment either in Great Britain or 
her colonies." ' Almost anything would be better than 
the infliction of unpayable fines, which mostly lead to 
cellular imprisonment.* Of&cial guardians, special schools, 
colonies," the services,' and even imprisonment on the 

1 The Study of the Criminal. Glasgow, 1902-3. 

2 Daily Mail, Aug. 7, 1902. ^ Humanitarian, Feb. 1903. 

* See the hard, but typical, case under the heading " A Recurrent 
Problem," Daily Chronicle, Jan. 15, 1904. 

^ For an account of what is done and doing with the young in Europe 
and America, see C. E. B. Russell and L. M. Rigby, The Making of 
the Criminal. London, 1906. W. and V. Carlile, The Continental 
Outcast. London, 1906. 

Since this was written the magnificent Boy Scout movement has 
developed and spread all over the world. I know nothing that has 
brought out the best in our boy barbarians so well, deflecting energy 
into healthful channels instead of merely suppressing it to break out 
in crime. 

* To make such usage of the army and navy is quite an old and 



THE DIRECTION OF REFORM 345 

lines of the Borstal system, must be appealed to for the 
rescue of the young. 

Drink is the unclean parent of disorder. The bottle is 
the wet-nurse of the hooligan in all ranks. But drink- 
taking has various degrees; it is present as a habit, a 
craving, a disease. The habit we see on all sides, " drink 
being the mistaken medium of hospitality, the delusive 
sign of personal generosity." ' The practice set up by 
disastrous social customs,* and by public-house pressure,' 
leads to the vice (excesses in normal people) ; thus we 
arrive at " Beer Street " and " Gin Lane," and so to 
scenes of such intolerable misery and squalor that spirits 
were held to be the easiest escape from them. ' 

But as degeneration extends and deepens, whether 
produced by drink or other causes, all control passes from 
the victim's power, and we perceive the overwhelming 
craving; be it for drink or for some other fatal thing, 
which healthy or normal people do not feel. Perhaps the 
best known of the many pathetic cases of this kind is that 
of the notorious Jane Cakebread. " She was not really 
a drunkard," says Mr. Thomas Holmes, who has devoted 
a chapter to her in his strong and very " human " work.* 
" But the smallest amount of drink roused the worst ele- 

obvious idea. In 1702 the Mutiny Act provided for the impressment 
of imprisoned criminals (vide Law Times, June 4, 1904) ; and all through 
the eighteenth and early nineteenth centuries, convicts, corner-men, 
and unemployed of all sorts, were swept away into the services, and 
made to fight the battles of their country. Welhngton's army was 
full of such captures ; how well they fought is testified in history. 
The hoohgan is the born soldier, the possible empire-builder ; and, far 
from shutting him up, we should employ his dangerous energies in the 
right way. He would be easy enough to manage under discipline ; 
I fancy few will doubt this, who have ever been in uniform. The other 
men would in no wise resent his presence ; soldiers and sailors have 
their weaknesses, but they are too good-hearted to be pharisaical. 

See also Lecky, History of England in the Eighteenth Century, vol. vi. 
p. 261. London, 1887. For a satirical commentary upon the old-time 
methods of recruiting, see R. B. Sheridan, The Critic, Act iii. Scene i. 

'■ John Bums, Labour and Drink, p. 5. 

» Amongst which " intuitional " cooking may be a cause, in that the 
husband or son gets to consider alcohol " as a necessary condiment to 
his tasteless and inagestible diet." See Dr. Saleeby, Daily Chronicle, 
Nov. 15, 1906. 

3 See Chap. XVII. 

* I believe the words employed by one of the Bishops were that 
" Drink was the shortest way out of Manchester I" 

" Pictures and Problems from London Police Courts, p. 129. London, 
1900. 



346 A HISTORY OF PENAL METHODS 

ments within her ; a pennyworth of ' four ale ' was quite 
sufficient, and after the nearest policeman she would go. 
The police often fled at the sight of her. Many an officer 
has bribed her to go away when she approached him. 
I have seen policemen running away and old Jane after 
them to be taken into custody. . . . During the nine 
weeks she lay out of doors she touched no drink, and no 
one could persuade her to take any, but the romantic 
heart of the old lady had been touched. A gentleman 
living in the neighbourhood left a shilling a week at a 
coffee-stall on Stamford Hill that Cakebread might be 
supplied with two cups of hot coffee daily. That shilling 
a week loomed large in her eye, and became a pound a 
day ; that kind act of pity on the gentleman's part she 
construed into a declaration of love, and she built many 
hopes upon it. She became a nuisance to the staU-keeper, 
declaring that she was being robbed and not getting the 
value for her pound a day. She waited and waited on 
Stamford Hill for that lover who never came, but fancying 
every well-dressed man that passed to be her love. Hope 
deferred made her heart, hopeful as it was, sick at last, 
so she got her pennjrworth of drink and gave herself 
into custody." 

" For over thirty years," continues Mr. Holmes, " this 
farce had gone on, and all this time a demented woman 
had been looked upon and treated as a confirmed in- 
ebriate." ' Two hundred and eighty times she had stood 
in the dock ; at length the prison doctor certified her as 
insane,' and she was sent to an asylum, where she was 
" sane enough to realize her misery in being surrounded 
by the insane, too insane to be fit for liberty or to control 
her actions." ' She died at the asylum two years later. 

Now this Jane Cakebread was but one of many ; she 
was a type of those " Borderland " victims whom all 
along the State misunderstood. As I turn over the leaves 
of my case books, I come upon many other instances. 

1 Holmes, p. 133. 

2 H.M.'sPrison.HoUoway, January 27, 1896. Registered No. 1 7,706. 
" Jane Cakebread is well known to me. I have always considered her 
to be of impaired intellect. Her mental condition has however so 
much deteriorated of late that I am of opinion that she is not now 
responsible for her actions, and that she should be sent to an asylum."— 
G. E. W.. Medical Officer. 

' Holmes, p. 141. 



THE DIRECTION OF REFORM 847 

Here is Grace Appleyard, 150 convictions; Elizabeth 
Watts, 223 convictions ; ' Tottie Fay, » Margaret Black, and 
similar men, and who shall tabulate how many more of 
them ? In the course of years the public, and even the 
lawyers, began to have doubts. Mr. Stipendiary Lane is 
stated to have referred to his humiliating, useless piece 
of duty, on sentencing an old woman to a further seven 
days.' On another occasion Mr. Stipendiary Rose re- 
marked that he must go on applying the clumsy law 
which so poorly met the prisoner's case.* 

Of one Kate Henessey, Mr. Holmes wrote : " Two 
hundred and fifty times she had stood there, two hundred 
and fifty times she had been sent to the refining influence 
of prison, to be redeemed and regenerated by the delightful 
task of oakum picking, sack making and scrubbing floors."' 
The publicity given to these miserable examples of 
the entire failure of the old deterrence theory set people 
thinking, ' and, what was much more useful, kept them 
thinking by continually obtruding, in grisly comment on 
prevailing premises. It was a very slow process (still 
working and yet far from complete) — as it ever is when 
the majority enforce what a small minority has to suffer — 
but it began and grew. 

The faith in the power of punishment was assailed 
and shaken, although the authorities continued to inflict 
it. The huge machinery of the " clumsy law " was present 
before them ; there was nothing else — and when it was 
once set going, it had to grind ; and so it did, and 
does, uselessly, cruelly. The craving for alcohol, drugs, 
nauseous substances and strange gratifications,' which do 
not tempt the normal man and woman, but are amazing 
or abhorrent to them, comes from some physical cause." 

' Sun, Dec. 14, 1897. ^ Evening News, Nov. 4, 1903. 

3 Case Book, i. p. 12. * Ibid. p. 34. 

' Pictures and Problems, p. 146. 

' " Nor is this wonderful," say two recent writers ; " for a punish- 
ment which only deals with efiects and does nothing to get to the root 
of the matter and remove the causes which have produced and which 
continue to produce them, can only be expected to prove idle and 
fruitless." — Russell & Rigby, The Making of the Criminal, p. 61. London, 
1906. 

' See Lecture by Dr. Mary Gordon before the Society for the Study 
of Inebriety, Oct. 9, 1906. 

' Speaking before the British Association at York in 1906, Mr. W. 
McAdam Eccles said that he refused to subscribe to the doctrine that a 



348 A HISTORY OF PENAL METHODS 

Till we can touch this fons et origo, admonition is 
futile, and punishment merely cruel ; once really fixed, 
the craving will prevail. This is a fact, but too painfully 
proven. If anything on earth has ever been fully tried, 
it is the world-old and instinctive plan of punishment. 
If anything has ever been established by the most fright- 
ful and persistent vivisection and worse vivisepulture, it 
is that the all-compelling passions cannot be deterred. 
The chronic inebriates are one group of those borderland 
cases which have, so far, been left to the criminal courts. 
Equally hopeless, and yet even more inhuman, has been 
the treatment of the sexually abnormal. With these 
we have the old witch-trial horrors continued in modern 
times. Largely from the same cause: misapprehension 
of obscure phenomena. For just as the poor broken- 
down things, obsessed and overcome by alcohol or by the 
drug habit — often refined and intellectual people between 
attacks — have been confounded with the coarsely swinish, 
so have the inverts and the sexually abnormal been 
classed among the vicious and the artificially depraved. 

The old idea was that sexual inversion was the extreme 
pitch of abandoned luxury, the last stimulus of exhausted 
age — at best a substitutional vice, a passing phase of 
artificial origin.^ 

We now know that, while this may be occasionally 
the case, the real trouble lies deeper. That the true 
inverts form a percentage of every population throughout 
the world. That sexual abnormalities are often mani- 
fested before puberty, and in those guarded by the purest 
surroundings.* We know that they may take high forms, 

man who took alcohol in excess was a criminal. There was a physical 
cause for the craving and scientists were engaged in discovering what 
that cause was. 

See also G. V. Poore, Harveian Oration for 1899. 

1 " Lorsqu'en 1852 Casper fit cette remarque trds judicieuse que la 
pederastie, consider6e jusque-li comme un vice, n'fetait due en somme 
qu'a une anomalie cong6nitale morbide, a una sorte d'hermaphrodisme 
psychique, personne n'aurait pr6vu que 40 ans plus tard on trouverait 
dans les grands ouvrages scientifiques une veritable pathologic psy- 
chique de la vie genitale." — Dr. R. von KrafEt-Ebing, Preface to Moll's 
work. Paris, 1893. 

' Dr. R. von Krafft-Ebing observes, " Tout ami de la verite et de 
rhumanit6 apprendra avec satisfaction que le perverti sexuel est un 
malheureux et non un criminel." — Preface to Moll's Work, p. iv. Paris, 

1893- 
"... there is a very clear line of demarcation between the City 



THE DIRECTION OF REFORM 349 

and low forms^^sometimes, as we shall see later, terrible 
and inconceivable forms, but they are no more amenable 
to legal control than the tint of the eye or the shade of 
the hair. 

Perhaps upon no other social problem has the law been 
so futile, inexpedient, and unjust. Futile because 
framed on false premises, since it ignored human nature 
in general, and abnormal nature in particular. It took 
no count either of the origin or the power of the passions 
it sought to suppress. It drove them in — as they some- 
times say of rashes in fevers^ with disastrous effect. 
The wise men of antiquity knew something of the diffi- 
culties of the problem — though probably nothing of its 
physical first-causes. " Who can change the desires 
of men ? " said Marcus Aurelius. Thucydides declared 
that it was absurd to think that when human nature was 
firmly bent upon doing any particular thing, it could be 
deterred by force or law or any external terror. Gibbon 
has told us that " it was with the utmost difficulty 
that ancient Rome could support the institution of six 
vestals," and not even with these " could the dread of the 
most horrible death always restrain their incontinence." ' 
Lecky expresses his experience in the following paragraph : 
" No man who knows the world will deny that with the 
average man the strongest passion or desire will prevail — 
happy when that desire is not a vice." " 

In this the criminologists concur. The late Mr. White- 
way pointed out that intimidation was no preventive, 
because in the face of overwhelming desire people were 
" more powerfully affected by the certainty of present 
enjoyment than by the apprehension of possible or prob- 
able future pain." ' 

thief and the sexual offender ; many of the latter . . . break the law 
under the influence of uncontrollable passion and not with the object or 
purpose of ulterior gain. . . . The sexual offender . . . rarely if ever 
comes of an habitually criminal stock," etc. Report of the Commissioners 
of Prisons, pp. 17, 18. London, 1897. Thus evidence as to " character " 
in sexual cases may bear upon the general manner of the accused's life, 
but not by any means on his sexual nature. We might just as well 
call evidence to affirm, that Mr. Dot was too honourable to be an 
albino ; or that Mr. Dash was so highly respected, he could not be 
colour-blind ! 

> Dr. W. Smith's ed. vol. ii. p. i37- London, 1862. 

' Map of Life, p. 239. 

3 A. R. Whiteway, Pamphlet. London, 1898 



350 A HISTORY OF PENAL METHODS 

" Appellant " says, speaking of the passion-acts : " No 
system of punishment will have much effect in checking 
crimes of this kind;" ' and Letourneau remarks that 
man obeys with fatal certainty " that which is his strongest 
impulse." ' 

So much for the views of writers. I would however put 
in further evidence, from actual facts which all can verify. 
It is a matter of common knowledge that patients in the 
latter stages of typhoid grow faint and frantic from the 
want of food. To take it in this condition means almost 
certain perforation of the bowels, and that means pain 
and death in a short time. But eat they will if they can 
get the chance ; they will beg food from parents, visitors, 
or nurses, they will steal scraps left anywhere accessible. 
That gnawing hunger, which, as we saw before, impels 
men under certain circumstances to devour one another, 
strives to be stayed though Death attend the meal. 
Take again prostitution : all men know that a chance 
meeting and union may result in one of the slowest and 
most ruinous diseases of the blood — a malady which may 
break up the constitution, which will defer marriage for 
two years, and the effects of which may still tell after 
twenty years. Yet this has never banished illicit inter- 
course, or frightened men away from risking all things. 

But, passing from opinions and general cases, let us 
now come to the particular and personal. Alas ! there 
are many of these legal tragedies, or else the subject need 
not have been discussed. As I have said, the grievous 
results obtained, by punishing the inverts and the other 
sex offenders, are quite as hopeless and yet even more 
pathetic than those achieved with the incurable inebriates. 
We do not find the tens and even hundreds of convictions 
of the same person for the same kind of offence. But 
that is because the sentences are so long, and human life 
is mercifully short, and cannot be drawn out sufficiently 
for the full demonstration of these hideous experiments. 
But we still find the long, slow, miserable periods spent in 
prison, and the same inevitable and unpreventable repe- 
tition ' of what may be called physiological acts. 

1 See Romilly Society, Pamphlet No. 7. London. 

2 Preface to French ed. of Lombroso's L'Homme Criminal. 

" Allowing for the much longer sentences inflicted for crimes against 



THE DIRECTION OF REFORM 351 

And the same truth is established beyond all doubt : 
that punishment affords no remedy. The prison directors 
are being convinced of this. In an official report which 
had been sent to me from New South Wales I came upon 
the following significant paragraph : " Another dangerous 
class is that composed of irresponsible offenders and sexual 
perverts. They are most difficult persons to deal with, 
either in or out of gaol. Hovering on the borderland of 
insanity, they appear to need some special form of 
treatment, which cannot be applied by prison methods. 
To turn such people out after completing their sentences 
is unfair to all concerned. They cannot help their 
diseased promptings, and it is cruel to expose them to 
temptation. One such case, who is now serving a long 
sentence for an indecent assault on a child, has on previous 
occasions been sentenced to three years, five years, and 
five years for similar offences. There can be no doubt as 
to his repentance for the acts he has committed, but when 
temptation comes to him on his release from prison he 
simply cannot resist it. Some day there will be special 
establishments for the treatment of such cases, where 
surgical and other remedial means will be employed." * 

Some time ago I received a letter from an eminent 
criminal lawyer in Melbourne alluding to a prisoner who 
had five times been flogged for five separate sexual offences 
(of what kind not stated). But the most terrible case 
of this sort that ever came to my knowledge took place 
at home in modern England. Away back in 1877 — when 
the present writer was a child about nine years old — 
a prosperous and respected bank manager suddenly 
disappeared. His books and accounts were hurriedly 
searched, but he was not a common absconder, and they 
were all correct ; he had been taken for a sexual offence, 
and he was sent — they passed those shocking sentences 
lightly then — to penal servitude for life. In 1897 an 
elderly bald-headed man emerged from that untellable 
immm-ement back to the living world. And then 
immediately succumbed to the old obsession ! He had, I 

morality, and for the fact that, while those found drunken or demented 
upon the streets force themselves upon the notice of the pohce, the 
sexual secrets are seldom disclosed. 

1 Report of the Comptroller-General of Prisons, p. 8. Sydney, 1903. 



352 A HISTORY OF PENAL METHODS 

believe, been free only nine months when he was arrested 
and stood in the dock again. The judge was indeed 
amazed, and talked about insanity ; but it was all in his 
regular work, and the oubliette's door gaped ready and 
open, so he gave him two years' hard labour— all that 
the Act allowed for his particular offence. This meant, 
however, that his licence was cancelled, and he was 
sent back on the original life sentence — for just as long 
as the Home Office pleased.^ 

After many more years had passed, the case appears 
to have attracted the notice of one of the judges and of 
the Salvation Army, and the poor prisoner was again let 
out and sent to a settlement in charge of that institution. 
Would I might end it there, but all was in vain : nature 
once more prevailed over restraint, over external terrors 
branded to the bone. He was sent back again, till 
Death shall intervene. This dreadful history reads like 
a story of the darkest despotisms. We seem removed 
into the times of the fourteenth Louis, and gaze out on 
the Chateau d'lf in the Bay of Marseilles. We think of 
the Bastille shoemaker by his stone-screened window. 
We think of the steep trap-door at Nuremberg. We 
think of the damp-stained dungeons of old Venice, or 
picture the island citadel of Schliisselburg as it stands 
to-day. Yet it has happened where the omnibuses run, 
within a walking distance of our doors ; only its height of 
sorrow and distress lifts it above the pavement of com- 
monplace. The Daily Chfonicle indeed observed,* " There 
is fortunately reason to believe that a case which the Bow 
Street magistrate was yesterday called upon to deal 
with, stands alone in the criminal records of our country " ; 
and so, in a way, it does, but yet withal it represents a 
class of cases which are survivals of past ignorance and 
superstition. In the future, such methods as just de- 
scribed with the abnormal or the sexually insane will be 
considered to have been as amazingly foolish and as 
cruelly inhuman as we now look upon the witch trials of 
old. All those who make a study of human habits; 
of the real ways and lives of men and women, as distinct 
from the conventional assumptions made concerning them, 

* Author's Case Book, i. 44, ii. 57. 
2 Deo. 20, 1906. 



THE DIRECTION OF REFORM 353 

will notice the impotency of the law in matters which, 
from the very nature of the case, must be so secret and 
so complex as personal, and, in the widest sense, sexual 
relationships.' 

Endeavouring to control the psychic storms and the 
physiological cravings by external terror, is very much 
like trying to steer a ship from the outside ; it cannot be 
done.' The mental self-searching restraints of believed 
religions alone really influence hidden desires ; even then 
the great passions will mostly break through.' 

Meanwhile the successive attempts on the part of the 
State * to regulate those matters of private judgment and 
individual conscience, which were once adjudicated upon 
purely theological grounds and authority,' has resulted 
in sequelae widely divergent from, and often directly 
contrary to, the wishes of empirical law makers. 

The first and most obvious was the endowment of 
blackmail. The blackmailer is a variety of the human 
parasite, allied to all those others of the tribe of Judas — 
those traitors, sneaks, and hypocrites who, in some 
circumstances, may be employed by the State itself at 

1 Punishments in these kind of cases bear so small a proportion to 
the whole number of ofEences committed, that they are looked upon as 
being accidents occurring to individuals. And the worst accidents, 
whether at motoring, hunting, or high speeds round railway curves, 
don't deter any one. 

> See WilUam Clarke, " The Limits of Collectivism," Contemp. Review, 
Feb. 1893. 

' Dr. Nordau has observed with regard to possible eugenic marriages : 
" The religious sanction would be absent from the modem restricted 
laws, and, in the case of a conflict between passion or desire, and legal 
prohibition, this would weigh as a feather against that. In a low state 
of dvilizatiou the masses obey traditional laws without questioning 
their authority. Highly differentiated cultured persons have a strong 
critical sense ; they ask of everything the reason why, and they have an 
irrepressible tendency to be their own law-givers." — Sociological Papers, 
vol. ii. p. 33. London, 1905. 

* But yet by no means universally : in some parts of the world, not 
made until the nineteenth century ; in others, again abandoned as 
impoUtic. In England the civil law against homosexual practices, 
25 Hen. VIII. c. 6, was repealed i Mary, reintroduced 5 Eliz. c. 7, etc. 
Vide C. F. Wilhams, American and English Encyclopedia of Law, 
vol. XX. p. 828. London, 1893. It should be noted that in later times 
far less evidence has been required to estabhsh the fact of the commission 
of an offence. See 9 Geo. IV. c. 31, sec. 18, before which a conviction 
must have been much more difficult to obtain. 

' See allusion to instigation by the devil. — J. Bodin, Demonomanie, 
p. 60. Paris, 1580. Also Statutes at Large, vol, vi. p. 208. Cambridge, 
1763. 
23 



354 A HISTORY OF PENAL METHODS 

a fixed salary, and in others may be found lurking with 
its most loathed criminals, for speculative and illicit 
gains. Particularly in an artificial and deliberate offence 
like blackmailing, Society suffers from the kind of criminals 
it deserves. Because oppressive puritanical laws serve 
as the potent instruments of private revenge or selfish 
extortion,' and a scandal-loving, prurient public taste 
creates the " culture " which the parasite can flourish 
in. (And, to continue the metaphor, how one bright 
beam of the sunlight of truth would kill all these unclean 
things !) The law-makers and politicians, as usual 
cheaply theorising about things, have assumed the victim 
of blackmail to be innocent, and have placed frightful 
penalties in his hands to hurl upon those who shall 
threaten him. 

The blackmailer, being a practical person, knows the 
accused to be generally guilty, or at any rate compromised, 
and that, consequently, he will endure almost anything 
rather than figure in a police-court scandal.' The greater 
his social position, and the higher his general character 
and reputation — his sexual nature being really a question 
apart — the more will he dread the odium of publicity ; 
the safer will the sex blackmailer feel. 

And, on the whole it is to be feared with reason, these 
creatures are extremely hard to catch ; ' the cases that 
get into the newspapers represent only unsuccessful 
operations. Effective deals are squared up secretly, and 

1 Though generally impotent and mostly dormant, as Shakespeare, 
with his imm.ortal insight, showed in Measure for Measure. 

2 Perhaps nine times out of ten, but not always. Older people may 
recollect how a distinguished statesman was once threatened, on which 
he instantly caused the arrest of his traducer, who was afterwards 
convicted. Those few who follow and study criminal cases may recall a 
remarkable incident where a young man, in the open street, was accused 
of indecency, forthwith seized, and marched towards the nearest police 
station. On the way, his captor suggested release upon pajrment, 
but the " prisoner " calmly elected to stand in the dock. Presently 
his assailants took fright and bolted, but were afterwards caught and 
sent to penal servitude, the magistrate warmly commending the prose- 
cutor. Had he, however, been really an invert, the course of events 
might have been more profitable to the blackmailers and much less 
satisfactory to the public interest. 

' Some years ago, in the American Barrister case, an undergraduate, 
his father, and the tutor of a college were blackmailed for some time 
before they at last took action. I believe an intrigue with a married 
woman had been alleged against the student — at any rate the man 
received ten years. 



THE DIRECTION OF REFORM 355 

are never heard of, though many things are pigeonholed 
at Scotland Yard — In fact a number of most villainous 
gangs are always badly wanted by the State, whose laws 
these very criminals get their living by.' 

Certain blackmailers are almost as " known " as 
politicians or actors, only the witnesses and victims will 
not come forward, and the police cannot get legal evidence 
complete enough to put before a jury. But once again 
I am not theorising from my tranquil study. Let me 
recall some illustrative cases. D. B., one of the best 
blackmailers of his day, lives, or did live a very few years 
ago, in peaceful retirement at a gay town by the sea ; yet 
men who have committed one of his many crimes are 
toiling through weary years at Portland Prison. R. C, 
a youth apparently with capabilities worthy of better use, 
was sent to penal servitude, but was never charged with 
blackmailing, at which he had been long notorious. Mr. A., 
a professional man, specialised in obtaining money for 
compromising letters ; he was ultimately convicted, but 
never for his blackmailing. Similarly W. H. became an 
active member of a church, and then proceeded to black- 
mail his younger acquaintances by writing alarming 
letters to their parents and employers. Like so many 
others, this creature escaped the more serious accusa- 
tions, and was sentenced to only six months' hard labour 
for false pretences and fraud.' The magistrate remarked 
that he had evidently been living by blackmail.' 

Sometimes these men are sentenced on other charges, 
and then we hear something of their previous mode of 
living, and tales maybe of systematic extortion. Then 
does the prisoner get all that the judge can give him for 
the particular offence of which he has been convicted, 
often accompanied by the grim remark that it was f ortu- 

1 Mr. Justice Phillimore once remarked, "It is said that England, 
with all her pretended virtues, is the home of the blackmailer." See 
Daily Chronicle, Dec. 14, Daily Mail, Dec. 15, 1905- (Author's Case 
Book, V. pp. 106, 107). 

Curiously enough Balzac said much the same: " Le chantage est 
une invention de la presse anglaise." See Monatsbericht des Wissen- 
schaftlich-humanitaren Komitees, p. 156. Charlottenburg-Berlin, July 
1906. 

' The People, Jan. 6, 1907. 

' Some interesting observations on this question were made by the 
Recorder of London in his charge to the Grand Jury, Feb. 5, 1906. 
(Author's Case Book, v. pp. 113, 114). 



356 A HISTORY OF PENAL METHODS 

nate for him that he had not been charged with black- 
mailing. The effrontery of a gang which thinks to have 
cowed their victim into abject submission was well 
exemplified some years back at the little town of B. 
For several years a Mr. M. was somehow in the power of 
three persons, who got money from him in considerable 
amounts, and even forced themselves into his country 
parties. A voyage to far-off lands failed to shake them 
off ; at last he turned, and the three were arrested. 
From that moment their case was hopeless ; one fell down 
in a fit at the magisterial hearing — and afterwards the 
stern old Hawkins, J., sent two of them to penal servitude 
for life, and the third, who was very much younger, 
received fifteen years. I understand they are still in 
prison.' 

As an example in sheer audacity, though it belongs to 
a different variety of blackmailing, and one far less 
depending on bad laws, I wish to allude to the most 
remarkable case of the kind present in my collection — 
the wholesale undertakings of the brothers C* These 
scoundrels started three small patent medicine companies, 
and sold, at enormous profit, a fluid purporting to have 
the same results on pregnant women as are obtained by 
an illegal operation. As a matter of fact the medicines 
were quite harmless, but the misguided purchasers did 
not know it ; and in the winter of 1898, batches of letters 
totalling some twelve thousand were sent out to the 
people who had bought drugs, addresses being on the 
books of the three firms. The recipients were accused, 
in these letters, of having committed or attempted to 
perform an act which was pimishable with penal servitude 
— no blackmailing is ever fully effective without the lever 
of the criminal law — but they were now informed by Mr. 
" Mitchell, Public Official," that if they would send— I 
think it was £2 — fmther proceedings might be then 
averted, if they were truly contrite for their crime. 
The blackmailer is often a bit of a moralist; one, I 
remember, quoted from St. Paul. 

The panic and terror caused to inexperienced girls 
can easily be imagined, and the two poxmds demanded, 

1 Author's Case Book, i. p. 95. 

2 Ibid. ii. p. 47. 



THE DIRECTION OF REFORM 357 

portions, fractions, shillings, of that sum, were forwarded 
to " Mitchell " with all haste, accompanied by piteous en- 
treaties to him not to prosecute. More than three thou- 
sand letters, containing over fifteen hundred pounds, fell 
thick into the office of these men, to which an unsuspect- 
ing errand boy was sent alone, that he might gather them. 
But this was too hot to last. Some few out of the numbers 
had fathers, or maybe husbands, who were not so easily 
terrified, and who came up on piu-pose to break Mr. 
" Mitchell's " head. Some few out of the numbers were 
desperate and at bay ; these placed the matter in the 
hands of the police. The end soon came. The messenger 
was shadowed and followed back, the three brothers 
were then seized and brought to trial, and sent away to 
penal servitude. The letters and their remittances were 
quietly returned. 

As might beforehand be anticipated, all the parks, 
commons, and dark lonely places generally, afford a ready 
hunting ground for human weasels of various kinds. The 
usual plan is to pounce upon people in compromising 
surroundings — genuine or alleged — and to pretend to be 
one of the plain-clothes constables — who also abotmd.' 
Such a case, for instance, occurred at Northampton in 
June 1906, where an admitted blackmailer stalked a 
soldier and his girl, and in the scuffle which later ensued 
was killed by the former. The young hussar was after- 
wards brought to trial, and was acquitted amid cheers 
in court.* 

Another example comes to us from Cardiff, where an 
ex-policeman was sentenced to twelve months' hard 
labour for attempted blackmail of two lovers who were 
walking out together.' A still more dangerous prowler 
had somehow obtained possession of an L.C.C. badge, 

1 This practice is liable to boundless abuses : see an instance of 
police collusion and suspicious evidence ; the accused acquitted : 
Evening News, April 21 and 28, 1903, Case Book, pp. 97, loi. The 
purpose of the police should be to prevent offences, not to sneak about 
and secure cases. The law should be more of a sign-post and less of 
a man-trap. Re PoUce blackmailing, see W. A. Purrington, "The 
Police Power and the Police Force," North American Review, vol. clxxiv. 
p. 505. New York, 1897. Also A. Arthur Reade, The Tragedy of the 
Streets, Manchester, 191 2. 

* Case Book, vi. p. 23. 

» Weekly Dispatch, Oct. 21, 1906. 



358 A HISTORY OF PENAL METHODS 

with the aid of which he long " worked " Wandsworth 
Common, till he was captured and got eighteen months' 
imprisonment. 1 The press furnished these two cases 
for my collection on the same day. This is exceptional, 
but these sort of things, in various degrees of meanness 
and apparent villainy, take place all round us. Doubtless 
but few of them come under my observation ; what actual 
proportion of the secret total ever get dragged into pub- 
licity at all, is probably quite unknowable.' 

It will be noticed that everywhere the criminal law is 
always made the instrument of extortion. The State 
seems ever to prove itself a clumsy and corrupting influ- 
ence in regulating personal morality ' — as it was when 
it attempted the Contagious Diseases Acts,* and as it is 
on the Continent, where it licenses women. There is no 
doubt that many of these personal laws become merely 
lethal weapons left at large, to hand for use by the worst 
criminals. 

Another of the effects by no means intended is the 
undoubted stimulus of prohibition." Shrewdly wrote 
Marquis Beccaria in 1764 : " As a general rule, in every 
crime which by its nature must most frequently go un- 
punished, the penalty attached to it becomes an incen- 
tive."' Ages before, Lycurgus had even framed a law 
upon this principle, " for he ordained that a man should 
think it shame to be seen going in to his wife or coming 
out from her. When married people meet in this way, 
they must feel stronger desire for the company of one 
another, and whatever offspring is produced must thus 
be rendered far more robust than if the parents were 
satiated with each other's society." ' 

Denial always strengthens a desire. We know that 

' Reynolds' Newspaper, Oct. 21, 1906. 

2 The Geiman W. H. K. Monatsbericht gives lists every month. 
' See Josephine Butler, Government by Police, pp. 7. 15, 17, 33, 63. 
London, 1879. 

* Charles Booth, Life and Labour of the People of London, final 
volume, p. 124. 

• A universal and perhaps on the whole a healthy human impulse. 
Forbid a book, and everyone wants it ; there are advertisements begin- 
ning "Don't read this." 

■ Crimes and Punishments, p. 229, J. A. Farrer's translation. London, 
1880. 

■^ Xenophon, Government of Lacedcemon, J. S. Watson trans., p. 205. 
London, 1884. 



THE DIRECTION OF REFORM 359 

people perishing with thirst, die thinking, dreaming, 
raving about rivers of water.' So also with hunger : 
thoughts of the famished always dwell on food — impossible 
banquets, rare dishes floating in from fairyland ; the 
thoughts are drawn towards the physical craving as the 
white blood corpuscles are attracted round an injury.' 
Negation and deprivation upset the balance of being. 
This is no doubt what Blake had in his mind when he 
once wrote that it was safer for a man to carry a veno- 
mous snake with him, than it would be to harbour an 
unsatisfied desire.' 

Explosive forces and poisonous gases become most 
dangerous when they are enclosed. Another result of 
scandal-making laws has been the influence of advertise- 
ment ... it is notorious that anything which tends 
to advertise a particular vice or crime invariably tends 
to produce an epidemic of that particular evil." * The 
imitative impulse has tremendous power, especially on 
weak and unbalanced natures. Some years ago a young 
man was found shot under dramatic and suspicious 
circumstances. A few days later another man killed 
himself, rehearsing the manner in which it was done. 
The child repeats her own experiences upon her doll — 
which fortimately is inanimate — and small boys read 
of bloody brigands' adventures, and make a police-court 
copy of the same. Hear of some weird peculiar atrocity ; 
it is quite likely to be done elsewhere. Read of some crime 
which for the moment fills sensational press columns ; 
the police will shortly be receiving many confessions, 
from persons who are yet in no way implicated. 

' These facts could be supported by the accounts of adventures 
innumerable. See for instance R. F. Scott, Voyage of the " Discovery, " 
vol. ii. p. 67. London, 1905. 

2 Savages and children generally gorge themselves from previous 
scarcity and the anticipation of it. I have seen horses, usually stabled, 
fly madly round and round a field when first turned out, while those 
accustomed to wide spaces will graze peacefully. Truly, as Macaulay 
observed, the cure for excess of liberty is continued liberty. 

" Victor Hugo has wisely said that we know not " with what fury that 
sea of the human passion ferments and boils when it is refused all egress 
— how it gathers strength, swells and overflows— how it wears away the 
heart— how it breaks forth in inward sobs and stifled convulsions, 
until it has rent away the dykes, or even burst its bed." — Noire Dame, 
EngUsh translation of 1833, vol. ii. p. 210. 

• Truth, Aug. 9, 1894. 



360 A HISTORY OF PENAL METHODS 

And so when some accident or some private feud 
reveals a case of sexual abnormality, and thus sets the 
clumsy, indiscriminating law in motion, there can be 
little doubt but that it prompts and brings about those 
very practices it is supposed to stay.' 

We see, then, that the effects resulting from repressive 
laws, which blindly seek to crush by external terror 
emotions and feelings implanted from the beginning, 
fated, and reappearing, thus persisting without end ; 
have been, the estabUshment of blackmail, the incentive 
of prohibition, and the attraction of advertisement.' 

But the effects of laws which are plainly opposed to 
personal liberty,' and which if we accept as true the saying 
" Volenti non fit injuria," are even opposed to the first 
principles of justice, must percolate through the com- 
munity, spreading the spores of falsehood and mistrust, 
and leaving deadly toxins in the body politic* 

1 That is, among the neurotic, unbalanced, sexually "neutral" 
temperaments. The pronounced natures will probably not be in- 
fluenced one way or the other. 

2 " Societies and private enthusiasts for the suppression of vice 
should read history." See article by Mr. Justice Gaynor, North 
American Review, vol. clxxvi. p. 19. New York, 1903. 

» " Pandering to the moral sentiment of the community is one 
of the daily necessities or pastimes of American political life. The 
consequence is that the most impossible laws find their way to the 
statute-book. Nobody seriously believes in them ; nobody intends 
that they shall ever be really enforced . . . there is a wide gulf between 
passing a bill and making it operative. To repeal it is hopeless, because 
no legislator will dare have it said that he favours gambling or Sunday 
drinking or vice of any kind. Hence follow, especially among the 
reformers, the most extraordinary devices for getting out of the pit of 
their own digging." — Sydney Brooks, Fortnightly Review, Dec. 1903. On 
the possibilities of democratic tyranny see also Oliver Goldsmith, 
Citizen of the World. 

"It is difficult to observe without some disquiet the manifestly 
increasing tendency of democracies to consider the regulation of life, 
character, habits and tastes, within the province of government." — 
Lecky, Democracy and Liberty, p. 462. 

" La liberty consiste k pouvoir faire tout ce qui nuit pasiautrui." 
Droits de I'Homme, art. iv. 

* See Jahrbuch fUr sexuelle Zwischenstufen. Leipzig, Max Spohr. 

Elements of Social Science, p. 249. London, 1886. 

Humaniti Nouvelle, March. Brussels, 1900. 

Havelock-Ellis, Studies in the Psychology of Sex, p. 208. Phila- 
delphia, 1 90 1. 

G. Bernard Shaw, letter in The Adult, September 1898. 

John Addington Symonds, A Problem in Modern Ethics. 

The Vorwdrts. Berlin, Oct and Nov. 1902. Case Book, iii. p. 75. 

Arbeiizeitung. Vienna, Oct. and Nov. 1902. Re Krupp case. 

A. R. Whiteway, Penal Science, p. 40. 



THE DIRECTION OF REFORM 361 

The State of the Future may indeed regulate economics 
and industry, but it will interfere as little as possible 
with private life and personal idiosyncrasies.' Least of 
all will it try to intrude itself upon emotional relation- 
ships — often so tragic and so irremediable — in which the 
State, wielding the heavy sword of what is called Justice, 
seems like a butcher trying to perform an operation. 
The law, then, will have to be altered and modernised 
along the lines of Continental Codes (France, Italy, and 
many other countries).' 

By these an age of consent is allowed for homosexuality 
to both sexes, above which the law refrains from inter- 
ference, except with conduct in a public place. But 
unfortunately there are other sorts of sexual offences 
which are against the laws of all civilised countries, as 
they involve assault against consent, misconduct with 
children below the age-limit, and irresponsible aberra- 
tions which yet involve criminal acts. Of these the crime 
of rape is governmentally the most important, since 
it may amount to a true crime — i.e. the gratification 
by a normal person of a selfish desire at the expense of 
another citizen. The possession of a girl is (like wealth in 
general) one of those things which most men desire, and 
would obtain if they were not restrained by conscience 
or by fear of consequences. It is indeed no part of my 
purpose to try to estimate moral guilt, or to presume 
to dogmatise on ultimate responsibility. But cases of 
rape, especially those involving several persons, present 
some features of the common possession-struggle ; and 
just as bigamy ' is akin to obtaining by false pretences, 
so certain forms of rape resemble robbery with violence, 
though rape will always tend to be more of a passion- 
act, a response to a much more personal and Vehement 

1 See for instance, Karl Pearson, Ethic of Free Thought, p. 440. 
H. G. Wells, Anticipations, p. 304. 

2 See Havelock-EUis, Studies, Philadelphia, 190:. 

F. von Liszt, Le Droit Criminel des Etats Europiens. Paris, 1884. 

Liszt und Crusen, Aussereuropdische Staaten. Berlin, 1899. . 

C. F. Williams, American and English Enc. of Law, vol. xx. Lon- 
don, 1893. 

> Bigamy is clearly not a sexual offence at all, though I have seen 
it classified as such by a prison official. The sex question, like most 
other difficulties, is mainly and ultimately an economic problem, and 
is none the less hard and dangerous on that account. 



362 A HISTORY OF PENAL METHODS 

temptation than any form of deliberate robbery. As- 
saults exhibit various degrees : there may be outrage 
done by some half- wild beast, taking advantage of a lonely 
place; or it may be begun by that kind of man, and 
others, less guilty, but yet perhaps intoxicated and pre- 
sent, may be led on and drawn to the crime. Or again 
it may assume an altogether different character, and be 
the outcome of insanity, the irresistible impulse of an 
abnormal man, which nothing can deter or terrify, and 
from which he cannot abstain. Many of the offences 
against children are of this kind, and also some acts of 
sensuality with animals.' 

More obviously abnormal and often absolutely maniacal 
are the sexual aberrations involving algolagny, blood- 
lust, and sometimes mutilation and murder.^ There is 
no doubt that certain people are gratified by witnessing 
the flagellation of others, and even in receiving pain 
themselves. Many cases of apparently inexcusable and 
causeless cruelty, or even of exaggerated " discipline," 
have had their origin entirely in this.' 

Other sex maniacs have a craze for wounding people ; 
of such was the Portsmouth boot-cutter who sliced 
little girls' shoes, and was never captured so far as I know,* 

1 These last-named are not really of public importance, and should 
not be punished or brought into notice except where cruelty to the 
animal or open indecency is alleged. Lord Auckland has written 
shrewdly on this matter; " The unavoidable and general detestation 
of mankind will always be a strong barrier against so horrid a crime 
(as bestiahty, etc.), but it may be a question whether the public prosecu- 
tion thereof be founded on wisdom. Some have thought it unsafe and 
likely rather to soHcit the attention than to deter from the crime." — 
William Eden, Lord Auckland, Principles of Penal Law, p. 245. Lon- 
don, 1 77 1. 

2 No doubt in nature, fierce and even fatal ferocity is quite normally 
associated with the sexual union. For this in animals, see L. Bianchi, 
Text-Booh of Psychiatry, J. H. MacDonald's trans, p. 666; and for 
brutality in marriage by capture see Lord Avebury, Origin of Civilisa- 
tion, etc., etc. Some modern cases of rape and criminal assault may 
be due to a throw-back to primeval barbarism. 

' Some might perhaps claim the celebrated Dr. Busby. A terrible 
example occurred in Germany in the autumn of 1903, when D, a tutor, 
ill-used one of his pupils till he ultimately died. Author's Case Book, 
iv. p. 19. 

At the last International Congress on Penal Anthropology, the 
police showed us some frightful whips, etc., which had been used in 
various disorderly houses to gratify the amazing tastes of a proportion 
of their frequenters. 

* Case Book, iii, p. 25. 



THE DIRECTION OF REFORM 363 

though the wrong man was very nearly l5aiched. Again 
there was the stabbing woman — if woman it was — who 
but a few years back terrorized Kensington. She would 
accost chance females whom she met, and ask for a 
certain street, and as they stopped to direct her she 
would stab them in the face and run away. So great 
was the alarm this lunatic occasioned, that women 
would shriek and flee on being questioned by a stranger. 
Detectives patrolled the region in female dress, and 
tried their utmost to secure the offender ; and the crimes 
ceased, but the much-wanted woman, or man disguised, 
was never secured. The most notorious instances of 
erotic insanity in this country are the extraordinary 
Ripper murders, which took place in the East End of 
London a good while ago. That they belonged to this 
class of crime was obvious to all criminologists, from the 
absolute want of rational motive, the profession of the 
victims, and the nature of the mutilations made. Much 
the same thing has occurred in other great cities,^ and 
may happen again whenever there comes a similar com- 
bination of luck and lunacy, for no laws can prevent. 

Likewise the ghastly wounding of horses and other 
creatures, of which we have heard so much in recent years, 
must be ascribed to sexual aberration and the power of 
the blood-craving.' In these kind of cases, then, the State 
wUl have to interfere — as best it can, and as little as 
possible. But before it moves in the future, there will 
have to be allegations involving one or more of the follow- 
ing features : violation of consent ; of the innocence of 
childhood ; or of public decency. One of these being 
established, each case will be examined on its merits, 
to ascertain its particular nature, and the assumable 
responsibility of the offender. The State must do its 
best to determine whether the prisoner is a normal man 
who is criminally vicious, or an abnormal person who is 
swayed by special and unusual impulses, which may be 
quite repellent to the ordinary mind. 

1 See A. Lacassagne, Vacher et les Crimes sadiques. 
B, Ball, La FoUe Erotique. 

P. Gaumer, Les Fitichistes, etc. 

2 Always excepting the crimes of this nature which arise from revenge 
and the purely imitative outrages which sometimes follow any pubUc 
horror which is much advertised and dwelt upon. 



364 A HISTORY OF PENAL METHODS 

The treatment of sexual offences will be of two kinds, 
(i) Where the offender is assumed to have been normal 
and responsible. Then he would meet with the deterrent 
— although always ultimately restorative — penalties in- 
curred by other selfish and unkindly people whom we 
have spoken of as ranking in Group I. (2) Where there is 
evidence of abnormality or psychosis ; when he would be 
placed under special care and supervision and treated for 
his particular infirmity. Of late years suggestion by 
hypnotism has been advocated and employed,' and this, 
with a lengthy course of asylum treatment, including 
what is now known and practised, with perhaps other 
methods which may be discovered,' as we learn more 
about the functions of the brain, may play a great part 
in the treatment of disordered impulses. 

But while a taste or " twist " artificially acquired or 
lately developed might readily prove amenable to treat- 
ment, or even coercion, an innate instinct accompanied 
by psychic or somatic abnormalities is held to be alto- 
gether irremovable.' Moreover hypnotic suggestion and 
influence, as distinct from any external or physical treat- 
ment is somewhat of a dreadful remedy. It is only as 
a last resource, as an alternative perhaps to prison or 
annihilation, that we should tamper with the balance of 
the soul or try to probe the springs of personality. 

A word must be said on other crimes of passion which, 
though not sexual in their origin, are very often physical 
and pathological. Murder is obviously a grievous, most 
irrevocable deed, since nothing can bring back a life once 
taken. Moreover, it need not be an impulse-act at all, 

1 See Therapeutic Suggestion in Psychopathia Sexualis, by A. von 
Schrenck-Notzing, C. G. Chaddock's trans. London, 1895. 

J. Milne Bramwell, Hypnotism, chap. x. London, 1903. 

A. Moll, Pactet et Romme, trans, p. 271, etc. Paris, 1893. 

Hall Caine, Drink. London, 1906. 

Pall Mall Mag., March, 1903. 

C. Lloyd Tuckey, Paper before Brit. Med. Soc, 1891. 

T. S. Clouston, The Hygiene of the Mind. London, 1907. 

2 It has been found that ascertainable disease may set up sexual 
aberrations. See D. Ferrier, The Functions of the Brain, ch. xii. 
p. 432. London, 1886; and for study of abnormal cerebration, see 
Morton Prince, The Dissociation of a Personality. London, 1906. 

' L. Bianchi, p. 669. London, 1906. 
Otto Weininger, Sex and Character, p. 50. London, 1906. 
C. G. Chaddock in Peterson & Haines, Text-Booh of Legal Medicine 
and Toxicology, p. 683. Philadelphia, 1903. 



THE DIRECTION OF REFORM 365 

but may be planned slowly and carefully, as in revenge, 
or may arise out of another crime when done by expectant 
heirs, brigands, or burglars. On the other hand, it does 
not follow that every murderer is the worst kind of criminal. 
There are positions in which decent people have found 
themselves, so maddening and provocative that even the 
courts of law have held them to have been justified in 
taking life. And there are people cursed with corrosive 
or unstable temper, whom drink, or more rarely jealousy, 
makes mad and frenzied while the fit is on them.' 

And then how often we read of what seems even more 
a tragedy than a crime — the sudden act which years will 
not imdo ; the hideous, open, bleeding, accusing, wound, 
which nothing can clos^ and remorse cannot even heal ! 
There is small need to punish in such cases ; we want to 
mend and to restore as far as possible ; the question is, 
will it occur again ? 

Far back in the beginning of this chapter, I said that 
in the future they will either mend or end a man. All 
treatment, painful or painless, will have before it a definite 
object — ^the reparation of the injury done, and the replace- 
ment of the offender back into social fellowship with the 
community in which he is to live. When the State takes 
a prisoner in hand, and relegates him to a course of sys- 
tematic repairing, it will believe that he can be repaired. 
If he can be reformed, it will entail (i) that he should be 
taught to lead a useful life, and shall be able in the course 
of time to regain liberty and character, and (2) it must also 
mean — for without this all remedies are vain — that he or 
she is held to be forgivable. The State, by the task it 
lays upon the prisoner, fixes its own price for the crime 
committed : not to undo the deed, for that is impossible ; 
not to pimish him for the past, for that would be morbid ; 
but to prepare him for the futiire, when he has made 
amends. 

And when once all things possible have been done to 
right the wronged and to make good the injury, we, the 
Community, who received our price, must say at length 
that the debt has been paid, and not claim it again ! 

^ I was once walking through a Colonial prison with the Governor. 
"That man," he observed, indicating a prisoner, " I could trust with a 
bag of gold ; but he has a violent temper, and he struck down another 
man with his working hammer, and is here for a long term." 



366 A HISTORY OF PENAL METHODS 



L^ 



In actual practice it is otherwise : Society may cease 
to imprison, but it seldom ceases to punish, for afterwards 
it excommunicates. It banishes past prisoners from its 
sight, and there are now no friendly forests to go to, and 
foreign lands are too far off to reach ; sometimes disgrace 
pursues them even there ; " imprisonment is as irrevo- 
cable as death." ' And so they " go under," as people say, 
and become vaguely of the criminal class, or of the sub- 
merged tenth, or are called by any other name that occurs 
conveniently and means little ; but this is not the end. 
They are said to go under ; but where ? To the " cave of 
the depths, " or the " grave of the blind, ' ' — what then ? A 
man is either dead or else he is alive, and if he is alive he 
is breathing so many times a minute, consuming a certain 
quantity of food every day, adding wealth to, or taking it 
away from, the community every year. And, like a fallen 
pebble in a pond, surely this man upon the sea of souls 
makes little but yet ever-widening rings of influence around 
him, if they shall be for good or if they act for evil. 

If then a man who has already paid the penalty appor- 
tioned, and by law held to have been sufficient for his 
offence — in the Future this will be expressed in terms of 
restitution, not of punishment — is still to be treated as an 
enemy of society, what hope or prospect is there left to 
him what can he do ? is he not better dead ? I once 
heard Mr. Stipendiary Chapman say, " Every prisoner 
has a past, but he has no future." 

Yet suppose a man or a woman does something which 
we refuse to forget and cannot forgive. Here are a few 
cases which were reported while this part of the present 
chapter was being written or revised. 

There was a man in the Midlands who, while in drink, 
deliberately set fire to his mother, the unfortunate woman 
dying from the burns ; he died extremely suddenly. 
There was a man in India who poisoned his wife, and also 
the husband of the woman he wanted. There was a man 
named S, who fired three shots at a passenger in a train 
through a newspaper, in order to rob him, and then con- 
cealed his body under the seat. This most dangerous 
person had been in prison and in a mad-house.' Going 

1 Bernard Shaw, Man and Superman. 

2 Author's Case Book. vii. p. 95. He received fifteen years. 



THE DIRECTION OF REFORM 367 

back a few years, there was a woman in Ireland who was 
interrupted in a long course of cruelty to her child by its 
accidental death in a dark cupboard where it had been 
confined. There was a similar woman in a Western 
county, who for some reason or other ill-treated one 
of her children in the same savage way ; she escaped 
with a fine. To my mind these torturers of the weak and 
helpless are the worst criminals in all the calendar ; at 
any rate their crimes are the most horrible.' 

What then is to be done with such as these ? or even, 
after several convictions, with the baser sort of systematic 
swindlers, coiners, forgers, and exploiters generally ? For 
though they do not inspire the same personal hatred, 
they yet may indirectly cause immeasurable misery, and 
cannot by any means be tolerated in the commonwealth. 
The old question recurs : can we forgive them ? Not 
in words alone, but also in heart and deed. Will we try 
our best to restore and replace them, and will we ultim- 
ately receive them fully and frankly into fellowship again ? 
This we must mean to do if we intend that they should 
be kept alive. The tendency of the time is all against 
capital punishment. I am opposed to every sort of penal 
retribution, but I think hopeless people should be pain- 
lessly removed. The question is not so much what 
criminals have done, as what we feel compelled to do with 
them. It is not a matter of blame, but of expediency ; 
we do not blame a dog for having hydrophobia, but we 
destroy it as a common danger. It will not be so much 
what a man (or woman) has done, as his assumed incura- 
bility, which will convey him to some painless death. 

Frommypointof viewacongenitalidiotisfarmoreworthy 
of death than are most murderers, because some of them 
might yet lead useful lives ; the idiot is beyond remedy.' 

' So they are, but as an instance of how bitterness is always found 
in direct inverse ratio to knowledge (as Nietzsche said), I find in Dr. 
Devon's admirable work, The Criminal and the Community (p. 40), the 
following sentence, " In fact the proportion of insane among prisoners 
generally is not greater than among the population outside, but in the 
case of females admitted for cruelty to children it is enormously in 
excess." But our old test would always come in : was it a normal 
crime ? Was it done by a stepmother ? Was the child illegitimate ? 
What the father did ? and so on. 

* " The small minority, for example, afSicted with . . . hideous in- 
curable habits of mind . . . exists only on sufierance, out of pity and 



368 A HISTORY OF PENAL METHODS 

What, then, has been the practical alternative ? In 
many countries (Belgium, Italy, etc., etc.), lifelong im- 
prisonment under terrible conditions.* In England it 
generally means twenty years.' 

It is sometimes asserted that the condemned themselves 
would prefer anything, even lifelong doom, to being 
hurled at once into the unknown. That might be so; 
the craven ParoUes cried out, " Let me live, sir, in a dun- 
geon, i' the stocks, or anywhere, so I may live." • Such 
people, maddened and stricken by the immediate terror, 
do not then realize what a life sentence means. Observe 
that Shelley, in his splendid drama, makes the cold blood- 
stained villain Cenci say, " I rarely kill the body, which 
preserves like a strong prison the soul within my power, 
wherein I feed it with the breath of fear for' hourly 
pain." But even if the criminals preferred prison, others 
have to be thought of in the commonwealth. " The 
rulers of the future will grudge making good people into 
jailors, warders, punishment dealers, nurses and attend- 
ants on the bad. People who cannot live happily and 
freely in the world without spoiling the lives of others 
are better out of it.".* 

The State which sends forth its sons over the seas— and 
it is the loss of the young which is the deepest tragedy, 

patience, and on the understanding that they do not propagate ; and 
I do not suppose that they " (the men of the New Republic) " will 
hesitate to kill when that sufferance is abused. And I imagine also the 
plea and proof that a grave criminal is also insane will be regarded by 
them, not as a reason for mercy, but as an additional reason for death." 
— H. G. Wells, Anticipations, p. 300. London, 1902. 

1 See W. Tallack, Penological and Preventive Principles, chap. x. 
London, 1896). 

' It has been sometimes contended, and truly enough, that this is 
a much more dreadful punishment than speedy death. In barbarous 
times torture preceded execution, and to this day bloodthirsty persons 
write to the press suggesting flogging before hanging as the only method 
which will put down this or that. 

Early in the last century U.S. Senator Livingston proposed that 
there should be written over the cell doors of all murderers : " In this 
cell is confihed, to pass his life in solitude and sorrow, A. B., convicted 
of the murder of C. D. ; his food is bread of the coarsest kind, his drink 
water mingled with his tears ; he is dead to the world ; this cell is his 
grave" (F. H. Wines, Punishment and Reformation, p. 145). This 
might be very effective torture, but it were a ghastly mockery to call 
it humane, and folly indeed to think it reasonable ; the inscription is 
well worthy of " reformers " of those times. 

» All's Well that Ends Well, Act. IV. Sc. ill. 

* Anticipatioris, p. 302. 



THE DIRECTION OF REFORM 369 

because they seem to leave all unfiilfiUed — to pass on 
duty through a thousand dangers, or to fill unnamed 
furrows on the battle-fields, will not spare those it cannot 
leave at large. The manner of their extinction is a matter 
of detail ; ' it will be carried out as painlessly as possible. 
We shaU no more ill-treat the socially incurable than we 
now blame the physically diseased and loathsome ; 
they will perish because we can do nothing with them, 
\ust as the others die because we can do nothing for them ; 
■Jnd either pass might happen to each one of us. '^ / 

The body, now buried brutally within prison walls — as j^^ 
though the State could never relax its talons, but vulture- 
like infixed them in its prey — will ultimately be handed 
over to the relatives or to such as claim it (but surely 
there would have been hope for any one who was loved by 
some one ?) ' — in any case, to be interred reverently. For 
he or she that was once convicted will have gone hence : 
let no one judge ; it is in mightier hands. The more I 
have tried through these many years to estimate the 
intrinsic value of acts and motives, the less I have fancied 
they could be truly weighed. It may be that conduct 
only balances temptations. At least, when I look on 
those who were praised or blamed, and who set forth on 
their lonely way, labelled — by Man — with their assumed 
journey's end (of which none ever really had the very 
faintest knowledge), I feel indeed with my whole convic- 
tion that fools have rushed, intruding where the angels 
dare not tread. 

1 See essay on the subject by Dr. J. M. Bleyer, Scientific Methods of 
Capital Punishment. New York, 1887. 

I understand that in certain States condemned criminals may to 
some extent choose how they shall be destroyed, which seems a very 
wise rule. 

" " There may be men among us who are so utterly bad that all the 
State can do with them is to kill them in order to secure the safety 
of others, but I have not seen them." — Dr. Devon (who was for many 
years a prison official), Crim. and Com., p. 168. 



24 



CHAPTER XX 

PRACTICAL PRISONS 

On any day, in the streets of London, we might perceive a 
kind of private cab ; it has thick windows of ground glass 
generally drawn up ; within it is a flushed and shivering 
child being conveyed to one of the great fever hospitals. 
Or we might meet a special omnibus with long seats and 
rests, taking cripples to schools. Or we may come upon 
an ambulance wheeled by policemen. It will have broad 
strong straps, which can be rapidly buckled, a long leather 
apron carefully fastened up, and a black hood drawn 
closely down. And it contains a silent Something, with 
face concealed ; a human form, or all that is left of 
it ; blood-smeared and muddy ; maybe mutilated, dead. 
They pass, and then we realize life's tragedies. Millions 
have risen up and gone forth at morning, and some of them 
shall not go home again. For they have been summoned 
suddenly from the hum of work ; watchers shall sit up 
waiting wearily, counting the tread of feet upon quiet 
pavements ; and desolation shall fill empty rooms, for 
the lost ones shall lie elsewhere. All this is Life as it has 
to be ; it is the Plan of Creation, it is the Doom of the 
World, it is man's terrible struggle with nature and cir- 
cumstances. We are doing the best we can. And as we 
see these poor things going by, we feel at any rate that 
they will be well cared for. We know that all will be 
done for them which kindness can inspire, and which 
experience has learned. We are assured that they are 
left in very skilful keeping. 

But with the inmates of the prison van it is-\ quite 
different. Those others whom we just spoke of had' come 
to grief, but they were being taken off for repair and 
healing. All the appliances which the minds of men 

370 



PRACTICAL PRISONS 871 

have planned and perfected through slow research will be 
made use of for each special case, and brought to bear 
that they may be restored. But those whom we dimly 
see in the passage darkness are merely carted off to be 
put away. No special remedies are applied to them ; all 
receive the same, no matter what any did, no matter what 
kind of evil or infirmity has brought each on e there. 
Indeed, apart from the recent and most promising(SorstaP) 
system, there are no remedies of any sort. There is 
merely a shutting up, as it were, in the sleeping den of a 
wild beast's cage, and a sullen walking behind the bars 
by day under keepers' eyes ; for we brutalize well." 
What shall be aimed at while they brood in cells, what 
shaU have been achieved when they are allowed to leave 
them, and what they shall find to do when they emerge 
again outside the wall, has not been thought out or pro- 
vided for. 

In fact, we have found by figures, and by the evidence 
of years, that probabilities work out against those who 
have been convicted of dishonesty ; that far from being 
sent away for cure — although it were through long and 
painful processes — the greater number of the more 
serious cases will certainly be dragged down utterly. In 
practice, we pass upon those who have been condemned, 
the doom conceived for the ideal hell, of suffering without 
hope ; for those in the prison van are mostly being 
driven to absolute destruction. No wonder, then, that 
" all communities and states are in reality ashamed of 
jails and penal institutions." ' No wonder that even those 
who have worked the punitive machinery officially for 
years, should perceive no prospect of any real and 
ultimate regeneration of society by its use.' No wonder 
that every year innumerable cases are never brought 
to " justice " at all, because more and more thoughtful 
people are feeling that harm rather than good will pro- 
bably be done — that the person convicted wUl be irre- 
trievably ruined, and will never get right again. 

Why should he ? What have we done to help, what 

' Many of the modern prisons on the Continent are now very much 
worse than ours, which have improved in many respects since 1898. 

2 C. S. Darrow, Resist not Evil, p. 75. London, 1904. 

3 See Major Arthur Griffiths, Mysteries of Police and Crime, u. p 472. 
M. Hammard, Chief of the Sflretfe, in The World's Work. Aug. 1904. 



372 A HISTORY OF PENAL METHODS 

have we done to counteract his defects, to appeal to his 
better side, to give him a helping hand at the place where 
he slipped and fell ? ' 

Nothing at all for good in any way ; » indeed, it is not 
too much to say, that we have done our worst to de- 
moralize him, to turn him either into a desperado at bay 
or an abject automaton.' And the Community incurs 
the man it made. 

How should he ? Is it likely that a man or woman who 
went crookedly on the highway of life will be able to keep 
straight after being, figuratively speaking, hit over the 
head by the legal truncheon ? * Is it likely that a man 
(or woman) who could not get, or retain, employment 
under ordinary conditions, should succeed in regaining 
respect after having been morally tarred and feathered 
inside prison walls ? Far from having any confidence in 
the reformative results of the State's penal process, the 
public will on no account, if they can help it, employ a 
person who has ever passed its doors.^ 

Then comes the weary fight of the not-wanted, for 
whom all honest avenues are " up " and no-thoroughfared ; 
whom the few shun from self-righteousness, and the many 
avoid from fear of some assumption of complicity, and who 
are headed off at every turning, and driven to be destitute 
or desperate. A fight where they mostly fail, and in 
which you or I, or any one, would probably fail also.* 

^ " Whilst we have prisons it matters little which of us occupy the 
cells." — G. Bernard Shaw, Man and Superman, p. 233. London, 1903, 

2 ' ' The professional criminal is in my opinion a prison product." — 
H. J. B. Montgomery, National Review, Aug. 1904, and also in Humane 
Review, April, 1900. 

^ "In fact, our system does not create citizens, but rather habitual 
criminals." — Edward Carpenter, Prisons, p. 15. 

* " Will a prolonged course of severities and degradations confer 
the virtues of industrious and orderly citizens on these unhappy men ? 
On the contrary, the more harshly you punish them the more you reduce 
the human element which still lies in their hearts. The more you 
punish them the more certainly you doom them to the awful existence 
of an habitual criminal." — Rev. W. D. Morrison, LL.D., quoted by E. 
Carpenter in Prisons, p. 16. See also Daily Mail, Oct. 28 and 29, 1903 ; 
Author's Case Book, iv. p. 27. Articles by H. Hamilton Fyfe, Daily 
Mirror, Feb. 27, April 10 Sept. 2, 1907 ; Case Book, vi. 

» M. B. Booth, quoting from a former Governor of Portland: "I 
have only known two cases of real reformation in thirty-seven years," 
and she keenly comments, " What a ghastly confession of unfitness for 
duty ! " After Prison What ? p. 260. 

Anxiety of prisoners as to what will become of them on release 



PRACTICAL PRISONS 373 

As I have indicated all along, the problem of the pariah 
lies deeper than any prison system. The nuclei of crime 
are so deep-seated in the origin, and so far-spreading in 
their ramifications, that they are neither occasioned nor 
cured by methods of punishment. Thus the absolute 
ruin which nearly always follows an exposed act of dis- 
honesty is not altogether the fault of the prisons, except 
in so far that they are not therapeutic, and that they are 
profoundly hardening to all concerned. For it arises 
largely from the nature of the case. Amidst the crowds 
who follow advertisements and seek after places as fish 
make for breadcrumbs, there is no difficulty in finding 
plenty of people who are quite poor, though of good \/ 
character, who will do ahnost anything for a weekly wage. 
Moreover, we must admit that any one who has once lost 
self-respect and reputation from having thieved, and 
who has been degraded and further stunted and cowed 
by prison severities, is all too likely to relapse again. We 
dare not recommend such a man to a decent post without 
a warning, or at least a reservation, which will most likely 
deprive him of it. Employers, and societies which now 

see Evidence of Departmental Committee, 1 895 , p. 29, etc. " The evidence 
shows how hard it is for an ex-convict to get on in the world," said Dr. 
Michael Taylor, holding an inquest on T. C, aged forty-five, of no home 
and no occupation, who was drowned in the Thames. He had served 
twenty-seven years' imprisonment. On Easter Monday Detective- 
Sergeant Allen saw him and gave him a shilling, as he said he had riot 
had a proper meal for some time. " You know how it is, guv'nor : after 
my career," he said, " nobody will employ me." Detective-Sergeant 
Allen added that he believed the man made every effort to obtain work 
{Daily Chronicle, April 18, 1904 ; Author's Case Book, iv. p. 66). See 
also remarks of Chief Inspector Watta, of Boston, U.S., in West. Gaz. 
Nov. I, 1906, Case Book, vi. p. 47. " I am sorry to say," observed 
the magistrate. Sir Joseph Reynals, " that it is quite true that when 
men who are unfortunately in your position do get honest work, they 
invariably have to leave it when it is found out that they have been 
convicts. It is very hard indeed" {Daily Chronicle, Sept. 9, 1905 ; 
Case Book, v. p. 86). " Many men on their release carry their prison 
about with them into the air, and hide it as a secret disgrace in their 
hearts, and at length, Uke poor poisoned things, creep into some hole 
and die. It is wretched that they should have to do so, and it is 
■wrong, terribly wrong of society that it should force them to do so " 
(Oscar Wilde, De Profundis, p. 40. London, 1905). 

" There are few persons in the world more to be pitied than the 
poor fellow who has served his first term of imprisonment or finds 
himseU outside the gaol doors without a character and often without 
a friend in the world." — General Booth, In Darkest England, p. 173. 
See also J. A. Farrer, Crimes and Punishments, p. $7; E. DuCane, 
Punishment and Prevention of Crime, p. 171. 



374 A HISTORY OF PENAL METHODS 

insure against loss through dishonesty,' will ferret out a 
person's past from his very boyhood. Whatever such a 
one may have suffered, hard though he try to get work 
and atone, the claw-like scar of the State's broad arrow, 
which brands his name, is always liable to start into sight 
again, and claim him for its own. 

But since we know that difficulties almost insurmount- 
able must needs beset the path of any man who ever 
stood convicted in the dock, the grim fact must be faced 
and carefully provided for. It is idle to argue that no 
one should gain advantage from having been in prison — 
the hardship is so crushing that we must have a counter- 
poise to neutralize it. A man should be benefited by 
prison, in the sense that a patient should be benefited 
by a necessary operation. 

Those finally classed as being incurable will be either 
destroyed swiftly and painlessly, or sent away to wide 
and open-air settlements, to be treated as patients, semi- 
lunatics or children, where they cannot be injured by their 
own failings, and where the present and also the on- 
coming generation shall be no longer tfoubled by their 
malfeasance. But if men and women are to return 
again to freedom and citizenship, the aim and purpose of 
the prison management must be to make them qualified 
to be at liberty. And this will assuredly not be done 
through shutting them up in cells, which are too like 
cellars, or by inflicting periods of "mental cramp";' 
or by consigning them like wild beasts to the bars, till 
they have little scope to behave badly and almost none at 
all to behave well ; or by breaking down all personality, 
for that means likewise losing self-control, the primal 
need of the majority of prisoners ; or by the unaided 
ministrations of official clergymen of whatever denomina- 

' " Am I never to hear the last of that ? " exclaimed a young man 
who had years before been handed over to the Court Missionary after 
a week's remand on a charge of theft. 

2 " It is worse than useless to punish them, above all by such an 
insanitary and vicious method as imprisonment. Full-blooded young 
men shut up in a cell for six months, nine months, a year I It is a 
helhsh thing to do to any one at any age, but in the heyday of youth, 
in the prime of manhood ! Here physiology declares the law to be the 
greater criminal. To kill the murderer has an appearance of equity ; 
but of what crime is imprisonment the equation ? I know of none." 
Extract from an article by John Davidson, Westminster Gazette, Jan. 21, 
1905. 



PRACTICAL PRISONS 375 

tion : these must become but officers in orders — they have 
not time to deal with individuals — and sympathy, unlike 
help, cannot be given out professionally.' 

The doctor — though as a student he very likely fainted 
on witnessing the first bad operation — must, and does, 
grow indifferent to the sight of physical pain. The prison 
chaplain must, and does, become accustomed * to looking 
upon mental misery ; whatever he may have felt in the 
beginning he will, in the ordinary course of adaptation, 
get used to his surroundings and so harden, he will become 
incapable of responsive pain without which there is no 
true sympathy ; we see this in the derivation of the word.* 

The prisoner has not been qualified for anything 
except prison by the repressive methods practised in the 
past. The treatment of the Future must be didactic 
and developmental, looking not so much on what the 
convict has done before, but rather to what he or she will 
prove to be when released. The prisoner must be trained, 
must be taught self-control, must be allowed, within the 
limits of safety, sufficient lilDerty to bring that into action, 
must have innumerable chances of making his, or her, 
condition rapidly worse or better according to conduct. 
In the complexity and struggle of Ufe outside, the conse- 
quences of actions are mostly too remote, and even uncer- 
tain, to be well realized by thoughtless and unbalanced 
people; but if they followed swiftly and certainly, as they 
should in prison, some useful lessons might be inculcated.* 

1 " The human will must be left outside prison gates, where it is to be 
picked up again five, seven or fifteen years afterwards, and refitted to 
the mental condition which penal servitude has created in the animahzed 
machine which is discharged from custody." — Michael Davitt, quoted 
by Carpenter, Prisons, p. 17. 

2 That fine reformer the Rev. W. D. Morrison observed : " The great 
difficulty with all of us in prisons is that we are so accustomed to see 
people under punishment and under sufiering that we are apt to get a 
little hard in the matter, unless we take very great care. We have to 
bend our minds as much as possible the other way. That is my experi- 
ence of prisons." — Departmental Committee, 1895, Evidence, p. 118. 

3 There may be mute and glorious "Francis Edens," people like 
Louise Michel, Gordon, or Whitman, who pass the gates ; but they 
belong to the world's saints and heroes. . 

* This principle is largely in force in many modem reformatories. 
See for instance V. M. Hamilton, " The World's Model Prison, W%de 
World Magazine, Dec. 1906. 

Elmira, Papers i« Pewo/ogy, p. 14. etc. 1886. 

Borstal, Reports by Borstal Association, 2, New Square, W.L,. , also 
Westminster Gazette, Aug. i, etc. 1907 



376 A HISTORY OF PENAL METHODS 

Clearly for all men, and especially for prisoners, the 
first necessity will be intelligent employment. In the 
case of the very short sentences there are great difficulties 
in the way, and probably to get people clean, tidy, 
orderly, and disciplined is all that can be attempted with 
the inmates of this class. There seems, however, to be 
a tendency to give first offenders further warning,* to 
bind them over, to accept sureties, to suspend sentences, 
and to release them on parole under special supervision. 
It is probable that prison will only be resorted to when 
all else has failed, and that then the initial sentences will 
be longer and also possibly indeterminate within the limits 
of the maximum penalty for the particular offence.' 

For any attempt at mending, or reformation,' work is 
the most important point in prison management. And it 
must on no account be made intentionally penal — anti- 
thrift, Charles Reade called the horrible tasks of old — 
it should be looked on as a blessing and a privilege ; work 
should be as productive as possible. By all the laws of 
political economy and well-being we require wealth (i) 

* This principle could be greatly extended ; it might be an excellent 
thing if certain special officials of the police, or probation of&cers, were 
empowered to caution (of course individually and secretly) young 
persons whom they believed to be drifting into criminal ways. This is 
already done by the Society for the Prevention of Cruelty to Children ; 
a letter is written to the man or woman suspected, and with it the 
intimation that no warning is sent twice. It is obviously better to 
prevent the commission of an offence, than afterwards to reckon up 
the wrong-doer and " bring him to a satisfactory criminal total." 
But we should have to guard carefully against police tyranny, always 
a very real danger in a democracy which is apt to be tormented by 
venomous cranks, and through the personal ambitions of unemployed 
legislators. 

' See for instance E. P. Hughes, The Probation System of America, 
London : Howard Association. 

R. W. McClaughry, The Parole System as applied to the State Prisons. 

J. L. " The Probation of Offenders BUI," Glasgow Herald, Sept. 12, 
1907. 

S. J. Barrows, The Indeterminate Sentence. Washington, 1899. 

Thomas Holmes, Parole Officers and Indeterminate Sentences. 

* On the subject of " Which is the most needed Reform ? " Sir Oliver 
Lodge wrote : " One of the improvements which seems to me the most 
immediately feasible is prison organization ; whereby prisons could be 
converted into reforming agencies, with machinery specially adapted 
to that end, not only in the case of children but in the case of adults 
also ; age making very little difference to power of self-management 
in the case of weak characters." — Evening News, Feb. i, 1907. See also 
Daily Chronicle, May 27, 1905, and letter by A. R. Wallace on prison 
production quoted in Humane Review, January 1907, p. 214. 



PRACTICAL PRISONS 377 

for the community ; (2) for the expenses of keeping the 
prisoner (in the future) ; (3) for the compensation of his 
victims ; ' (4) for the convict's family left at home ; " (5) 
for small alleviations and luxuries — for we should reward 
if also we punish — which he may be allowed to earn for 
himself; (6) for start-money upon his ultimate release. 
Through the imorganised system, or rather want of 
system, in Western society, production in prisons has 
been greatly impeded, especially in democratic countries, 
by political pressure.' The fear of this and the deficiency 
in land within prison bounds doubtless occasions that look 
of stagnation so often noticed in prison surroundings.* 

But all these attempts at restricting production are 
clearly the worst political economy ; they seem to assume 
that the producer, and not the idler, is the enemy of 
society ; they almost imply that every child who grows 
to be a citizen appears as a competitor and a rival to 
be suppressed ; they would conflict against the common- 
wealth, and render prisons worse than plague-houses. 
The more complex problem of the sale and disposal of 
gaol-made goods has largely been solved by supplying the 
State, and this in time may be much more extended. 
Prison-made goods are better than prison-made men ! • 

1 " No method of dealing with first offenders can be satisfactory 
unless the court can insist on restitution to the person wronged." 
Thomas Holmes : see " Howard Association," in Daily Chronicle, April 
16, 1907. To my mind restitution should be the chief aim of the law. 

2 This is apparently being done, under the Swiss Code, art. 3 1 . See 
E. Jenks. 

Law Quarterly Review, vol. xix. p. 21 (Jan. 1903). 

See also W. Tallack, Reparation to the Injured. London, 1899. 

3 For England, vide D. C. of 1895, Evidence, Re Resolutions of certain 
Trades Unions, pp. 375-386. In the State of New York the prisoners 
passed through a cruel and paralysing period of inaction occasioned by 
law, made a few years ago. I perceived traces of these restrictions when 
visiting Melbourne. 

• See for instance, W. B. N., Penal Servitude. London, 1903. 

No. 1500, Life in Sing Sing. Indianapolis, 1904. 

H. J. B. Montgomery, World's Work, April, 1905. 

The present writer. Humane Review, Jan. 1901. 

Convict Life, by a Ticket-of-Leave Man, chap. iii. London, 1879. 

Report of recent address by Thomas Holmes, Reynolds', Sept. 29, 
1907. 

» It is curious to observe that while the Act prohibiting the importa- 
tion of prison-made articles from abroad may or may not have been 
a wise and necessary measure, it yet constituted, for good or for evil, 
the first step taken in modern times towards establishing protection 
in England. 



378 A HISTORY OF PENAL METHODS 

It will be those serving the longer terms for whom most 
can be done ; we can afford to take trouble with them, 
since they are relatively few in number, and they have 
great and heavy need of help and succour.^ Among them 
are good men gone wrong, and stunted, lop-sided, un- 
balanced creatures, who cannot keep right. The former 
are made from fine material, which will respond to pains- 
taking treatment, and, in the end, repay a thousandfold. 
In these we must develop all the great misused faculties 
of body and brain; we must see that they work hard 
through the long hours of labour, and then we must yield 
them rest and give scope to their minds and sympathies 
when the day is done. I should like to see some of them 
playing chess — excellent discipline, which teaches patience, 
combination, consequence — or cultivating some hobby of 
art or craft, or singing to solemn music at evening. 

I should like to see them making beautiful things 
(I have in Greece ; and they do, I am told, in America), 
engraving, painting, writing, studying ; doing anything 
and everything that would call forth and kindle their 
higher nature ; raise them out of the guilt of the past 
and the doom of the present, and lead them back to 
fellowship and freedom. It may be said that convicts 
are not these sort of people. I reply that there are 
prisoners of all kinds, high and low ; let those then be 
raised who can : hitherto we have levelled, as it were, 
downwards, making the prisons easiest for the most 
brutish of their inmates, and ghastly beyond all words 
for intsUectual prisoners. Let us try if we cannot now 
at last begin to level up. 

The latter, or the degenerates, are far more difficult to 
reclaim ; apparently less guilty because obviously less 
responsible than the higher types, some of them may have 

1 See Chap. XIX. 

" Give a man useful work, interesting work, remunerative work : 
why should he not be paid for his labour ? Don't stunt the moral 
nature or intellectual being of the convicts. I would make their prison 
life much more interesting. Why not ? Give them concerts, lectures, 
interesting employment, light and happy services, a, greater selection 
of ministers to preach to them." — Sir Robert Anderson, late head of 
the Criminal Investigation Department, Scotland Yard, Interview in 
Great Thoughts. 

See also Captain Arthur St. John's very helpful essay on " Prison 
Regime," Penal Reioym League Series, No. ii. 



PRACTICAL PRISONS 379 

fallen through uncontrolled, and, in such simple half- 
developed cretinous natures, uncontrollable, animalism ; 
many more, however, have probably done nothing very 
serious taken singly, but a number of things which, from 
being repeated, have brought on cumulative punishment. 
With most of these the trouble is not moral or even alto- 
gether social, but rather ante-natal and physical. Poor 
derelicts of life indeed, these chronic prisoners ! They 
are not grotesquely, violently mad enough to be protected 
in the asylum wards, and they are too unbalanced to go 
about amidst the snares and passions of the world. What 
cBn we do with them ? ' It has been suggested that con- 
victs after a fourth conviction should be painlessly des- 
troyed, and if this had to be the alternative to perpetual, 
or at any rate constant imprisonment, I should say it was 
better. 

But for the milder, intermediate cases, there might — 
as has so often been suggested — be asylum-prisons, to 
which, after a certain niunber of failures, they could be 
sent. There, they should all be made as happy as possible, 
as though still at school ; they should be settled in a wide, 
open country, or upon some island. But they would never 
be allowed to beget children, and seldom, if ever, would 
they be let at large to take part in the fierce struggle of 
life, or move in the great unguarded world again. . . . 
Still I repeat, that all who cannot ultimately lead useful, 
human, tolerably happy lives, should be destroyed as 
soon as ever their condition has been determined. 

Now, all along we have been tracing back the causes 
which bring crime into our midst, and how we should treat 
the criminals when convicted according to their various 
distempers. There still remains a hard and grievous 
problem : what shall become of men and women released, 
when they emerge again and have to get their livelihood ? 
A patient coming from, say, the small-pox hospital, with 
his face all red and scarred from the loathsome pits, 
is received again ; we believe that they would not let 
him out until he was cured ; he picks up the thread of his 
life and labours ; he has suffered, and all have helped. 

1 Reported lecture by Mr. Secretary Bonaparte before the National 
Prison Warders' Association, Chicago. See Evening Standard, Sept. 19, 
1907. 



380 A HISTORY OF PENAL METHODS 

A person is let out from a lunatic asylum ; he too is 
received with kindness and compassion, although at first 
with a certain amount of fear, and even concealed 
aversion. People are not quite sure that he is safe, they 
dread that he may relapse, have fits, or perhaps break out 
in some fresh and appalling way. But in time this will 
all wear off ; he may pick up the threads again. 

But when a man is released from prison, he is tossed 
back, as it were, on to thorns and briers. Nobody wants 
him, his place has probably been filled, he is looked upon 
as having been contaminated rather than cured ; he must 
hide amongst other outcasts and live as they,' for the 
self-righteous world beyond will have none of him ; the 
threads of his life and labour are lost and broken, and 
who shall fix or join them up again ? 

" Men with characters branded by their having been 
convicts," ' says the Report of a cruel old Royal Com- 
mission, " are exposed to an almost insuperable disad- 
vantage in the strong competition for emplojonent in this 
country. . . . Even though some masters are willing to 
employ liberated convicts from motives of charity, it 
is necessary carefully to conceal their previous condition 
from their fellow workmen, who would otherwise refuse 
to work with them." And then it goes on to say, with 
strange defiance of that Christian rule which these Com- 
missioners followed ostensibly, "This feeling amongst 
the free working population is one which it is neither 
possible nor desirable to remove," etc. But this was 
written in the shallow, selfish, pharisaical nineteenth cen- 
tury, that is dead and damned ; in which they had all 
the will to ruin and do to death,' by slow degrees and 

1 Belonging to a different religion, I know notliing of Salvationist 
theology, but there is sometimes a splendid human sympathy about 
them, as in this passage : " A fellow-feeUng makes one wondrous land, 
and it is an immense advantage to us in deaUng with the criminal classes 
that many of our best of&cers have themselves been in a prison cell. 
Our people, thank God, have never learned to regard a prisoner as a 
mere convict A 234. He is ever a human being to them, who is to be 
cared for and looked after as a mother looks after her aiUng child." — 
General Booth, In Darkest England, p. 174. 

2 Royal Commission of 1863 Report, pp. 33, 34. 

2 " Nay, take my life and all; pardon not that: 
You take my house when you do take the prop 
That doth sustain my house ; you take my life 
When you do take the means whereby I live." 

Mer. of V. iv. 1. 



PRACTICAL PRISONS 381 

indirect devices ; though they no longer had the brute 
courage to hang. 

I have tried my best already to drive home the fact 
that such an attitude on the part of society towards a 
man or a woman, who has ahready undergone conviction 
and punishment, logically involves— and for all parties, 
far better involve— that the community should kill 
the man or woman in question. A person who is let at 
large from prison is one whom the State decided not to 
destroy : then let us act on this and see him through ; 
so, if he fail again, we can say truthfully that it was his 
own fault (or his infirmity) and not ours — whereas, at 
present, we ought to know that most men who have 
been convicted of dishonesty can only rise up again by 
quite unusual character or talent. 

We set the ex-convict an impossible task ; we make 
him engage in a kind of conflict with the community, and 
we tell him to " go in and win " ; and he drifts down and 
is lost ; and those who should have experience fully expect 
it, for they keep big books full of thumb-impressions, 
awaiting him back in prison. This must be altered ; the 
State must complete its task of restoration. " 'Tis not 
enough to help the feeble up, but to support him after," ' 
and " if these men and women are to live honestly out- 
side prison, work must be found for them somewhere." ' 
There is reason to hope that when the young are better 
looked after, when loafers and idlers are taken in hand, 
when the accursed public-house is altered in character 
and is no longer made a training ground for getting 
drunk, and when all convicted prisoners are scientifically 
treated and classified, the number of the criminal, or 
rather the outcast class will diminish enormously. 

We must make use of all ancillary aids in the shape of 
philanthropic societies, work-finding agencies, emigration 
and colonization. The replacement of any person who 
has ever been in prison — particularly if the offence has 
been any form of dishonesty — back into decent work and 
fellowship with the community, so far presents great 
practical difficulties arising from the nature of the case. 
Now that we know more of the origins of crimes, now 

^ Timon of Athens, I. i. 

2 Rev. W. Carlile, the head of the Church Army. 



382 A HISTORY OF PENAL METHODS 

that we see more clearly the extent of their excuses and 
of our own collective guilt and selfishness,' we are not 
likely to come across that spirit of hard, crass cruelty, 
already alluded to, which yet could be defended by a 
Royal Commission, in the deep moral darkness of the 
nineteenth century. But we must always be prepared 
to meet with the avoidance of ex-prisoners. If they 
have ever stolen money, we fear that they will do so 
! /again, and that we, or worse still, the persons who ac- 
{/^ cepted our recommendation or responded to our appeal 
will suffer in consequence. Doubtless when they emerge 
from undergoing new forms of treatment, really directed 
to apply to each case in hand, the public may acquire 
confidence in the methods, and may in time become as 
hopeful of a man's having been reformed, as they are now 
convinced that he has been incurably degraded in passing 
through prison. Also, it might not prove impossible to 
furnish some guarantee to the employers of ex-prisoners 
against loss through them, up to certain amounts. This 
is now done on strict business principles by assurance 
companies for employers of servants possessed of good 
references ; and if the idea were found capable of extension 
to the more hopeful of the cases discharged from prison, 
it would give confidence to those who had work to offer. 
The Government might furnish the guarantee — say up 
to fifty pounds — and make the prisoner earn his own 
premium ; or the experiment might be thought worth 
trying by some philanthropic society. 

But even if something of this nature were practicable, 
there is always an instinct to shun the disgraced, especially 
where they appear to be blameworthy. This is due more 
to fear than to pharisaism ; we see the same avoidance 
of leaders of unpopular movements, though they may 
afterwards win and prevail. People will dread associa- 
tion with the ostracised, especially with persons who have 

1 There is a great deal to be said for a humane and supervised 
system of transportation. Our own early experiments gave some 
great results, though they were marred and disgraced by the ignorance 
and brutality of the officials and the age. Both France and Russia 
have done much to develop distant and inhospitable lands by means 
of their convict labour ; and any struggle against nature and disease 
must be morally healthier and infinitely more hopeful than the slow, 
passive endurance of artificial penal discipline. See for instance J. S. 
Balfour, Weekly Dispatch, Dec. 9, 1906. 



PRACTICAL PRISONS 388 

been convicted of acts which they themselves are liable 
to be suspected of, or towards which they feel themselves 
drawn secretly. Thus the poor will fear any suspicion of 
theft, the business man of fraud, the elderly celibate of 
sexual assault, the young woman of prostitution ; and so 
on. In fact, it needs much courage and character, in this 
glass-housed world, to befriend the fallen ; and that is 
mainly (for conscientious or vindictive impersonal cruelty 
is now rare) why there are so many castaways. 

But we must help them all, for their sake and our own. 
It can be done, if only we should will. Mark how a war, 
a calamity, even a London fog, draws men together : 
cannot the spirit of the awakening commonwealth achieve 
more than these ? But we must teach, and preach, and 
fight against this deadly, though informal, modern excom- 
munication after prison.' I have seen a man, away in 
North Africa, who looked out on the scene and sunlight, 
and up at us, with but red sockets where he once had eyes ; 
he had been blinded by the Government for brigandage, 
and begged of the passers-by at the wayside. But even 
such a barbarous mutilation is perhaps not more cruel 
to the victim than to be set adrift deprived of hope, to 
roam abroad and find all hearts estranged, all sympathy 
turned away ; to walk like an earth-bound ghost, un- 
recognised : alive with all nerves and senses amongst the 
living, yet treated as one long dead. This is the fate 
reserved for ex-prisoners ; but it will not be so before the 
brightness of the Futiure ; when they will be gathered 
within the Nation's fold, and comforted. 

1 Since this was written I read an important paper on the reinstate- 
ment of persons who have been convicted by F. Reginald Statham, 
Fortnightly Review, Dec. 1907. 



INDEX TO AUTHORS 



Abram, A., Social England, 40 

Adams, G. B., Pol. Hist., 45 

Adams, W. P., address by, 334 

Addis and Arnold, Cath. Diet., 43, 
80 

d'Addosio, C, Best. Delinq. 257 

Agnel, E., 259 

Alabaster, E., Chinese Code, 293 

Alcock, A., Indian Seas, 322 

Allen, Charles W., in Twentieth- 
Cent. Pract., 301 

Allen, Grant, Ang.-Sax. Brit., 7, 
323 ; Phys. Esthetics, 301 

Allen, Thomas, Hist. Land., 17 

Alverstone, Lord, quoted, 343 

Ambrose, St., De Elia, 39 

Amira, K. von, Thierstrafen, 256, 
257 

Anderson, Robert, in Nineteenth 
Century, 228, 229, 302, 312, 
319, 336 ; in Great Thoughts, 
378 

Andrews, William, Old-Time Pun- 
ishments, 6, 15, 54, 55, 56 

Anson,William, in Daily Chronicle, 
330 

"Appellant," Crimes andPunshts., 
237, 350 

Aristotle, Ethics, 271 

Arnot, H., Criminal Trials, 70, 75, 
266 

Arthur, George, in Report 1837, 
142, 169 

Ashton, John, The Devil in Brit., 
82 

Athenaeus, 295 

Auckland, Lord (see Eden, W.), 
32,35,44, 335, 362 

Augustine, St., De Civ. Dei, 281 

Avebury, Lord (see Lubbock, 
John), 260, 294, 362 

Ayrault, P., referred to, 261 



Bab, E., Die Gl. Liebe, 297 
Baber, Emperor, Memoirs, 293 
Backhouse, J., Aust. Colonies, 130, 

156, 160 
Bacon, Francis, Sylva, 106 
Bailey, J. B., Gaols, 17 
Bailey, T. B., Diary, 327 
Bailly, G., Monitoires, 259 
Baker, Chronicle, 17. 
Baldwin, S. E., Repar. for Crime, 

340 
Balfour, J. S., My Prison Life, 

212 ; in Weekly Despatch, 382 
Ball, B., Polie Erotique, 363 
Ballagh, J. C, White Servitude, 

108, 109, 113, 114, IIS, 118, 

120, 121, 122, 123 ; Hist. 

Slavery, 119, 120 
Balzac, H. de, referred to, 355 
Bancroft, G., Hist. U.S., iii, 113, 

114 
Bancroft, H. H., Races of the 

Pacific, 292, 294 
Barnes, Dr., in Com. of 1828, 

152, 155 
Barnwall and Alderson, Report 

of Cases, 24 
Barrington, D., Ancient Statutes, 

35, 56, 106, 109 
Barrows, S. J., Indeter. Sen., 376 
Bartholomaeus Anglicus, referred 

to, 300 
Barton, G. B., Hist. N.S.W., 124, 

130, 147, 155. 156 
Bax, E. Belfort, Essays, 296 
Baxter, Richard, World of Spirits, 

67 
Beach, F., Psychology, 70, 80, 85, 

87, 90 
Beaumanoir, P. de, referred to, 

261 
Beccaria, Marquis, referred to, 358 



384 



INDEX TO AUTHORS 



385 



Beck, A., in Evening News, 219 
Begbie, Harold, Broken Earthen- 
ware, 219 ■ 
Bekker, B., Monde enchanti, 67 
Benecke, E. F. M., Women in 

Greek Poetry, 294 
Benedict of Pet., Gesta Ricardi, 127 
Benoit, E., L'idit de Nantes, 252 
Benson, E. F., in Nineteenth Cen- 
tury, 70 
Bentham, J., Letters, 148, 249 
Bernard, R., Guide to Gd. Jurymen, 

61,65 
Besant, W., Tudors, 14, 15, 55 ; 
Med. Land., 12, 22, 24, 26, 27, 
56, loi ; Eighteenth Century, 78, 
83, 86, 88, 89, 303 ; Stuarts, 
78, 252 
Bethfe, E., in Rh. Mus., 295 
Bianchi, L., Psychiatry, 362, 364 
Bigge, J. T., Report, 131, 132, 135 
Bingham, J., Christian Church, 25, 

27, 36, 40, 43, 79, 292 
Bird, T., Letters, 19. 
Blackstone, Commentaries, 11, 23, 

26, 52, 251, 289 
Blagg and Wilson, Fab. Soc. 

Tract 163, 312 
Blake, WilUam, referred to, 198 
Bleackley, Horace, Victs. of the 

Scaffold, 124, 147 
Bleyer, J. M., Methods of Cap. 

Pun., 369 
Blcch, Iwan, Sexual Life, 296 
Blount, T., Law Diet., 40 
Bodin, J., Sorciers, 62, 63, 72, 73, 

353 
Boguet, H., Discours, 62, 63, 73 
Boies, H. M., Penology, 239, 246 
Bonaparte, Secretary, address by, 

379 
Boniface, Archbp., Constitutions, 

32.42 
Bonner, H. B., The Gallows, 204, 

335 ; in Humane Rev., 244 
Bonwick, J., Egyptian Belief, 292 
Book of Chains, 207 
Boorde, Andrew, Reg. of Health, 

83 
Booth, Charles, People of London. 

303, 330, 358 
Booth, M. B., After Prison, 336, 

372 
Booth, William, Darkest Eng., 302, 

303. 373. 380 
Boucher, J., Amer. Revolution, 112 
Bourke, R., Letters, 158 

26 



Bourquelot, F., Mort Volontaire, 

279, 282, 283, 285, 288 
Bouwer, P. van. Civ. des Grecs, 294 
Bower, A., Hist, of the Popes, 262 
Bower, Nott, in if. Com. on Licens- 
ing Laws, 302 
Boxall, G. F., Bushrangers, 151 
Bracton, De Legibus, 10, 12, 23, 

24, 254, 286 
Braim, T. H., Hist. N.S.W., 136, 

142, 143, 156, 169 
Bramwell, J. Milne, Hypnotism, 

364 
Breholles, J. L. A. Huillard-, Hist. 

Fred. Sec, 292 
Brentano, F. Funck-, Princes, 67, 

197, 286 
Brinklow, H., Complaynt, 15 
Brinvilliers, Marquise de, 197, 286 
Britton, 9, 10, 11, 12, 26, 50 
Broca, P., Ph. of Hybridity, 299 
Brooks, Sydney, in Fort. Rev., 360 
Brown, John, John Bunyan, 16 
Brown, John (of Had.), referred 

to, 69 
Brown, P. H., in Law Mag. and 

Rev., 324 
Browne, W. A. F., Asylums, 81, 

84. 89. 93. 94 
Browning, C. A., Convict Ship, 

131. 132 
Browning, Oscar, Condottieri, loo ; 

Guelphs, 262 
Bryant, T., Diseases of the Breast, 

298, 300 
Buckingham, J. S., Travels, 292 
Buhler, J. G., Laws of Manu, 274 
Bullock, W., Virginia, 113 
Bund, J. W. W., Epis. Registers, 

42. 43 . , .. 

Burke, J. L., Martin Cash, 162 
Burnet, James, in Med. Times, 2^6 
Burton, R., Anat .of Mel., 82 
Burton, R. F., Arabian Nights, 

293 
Burton, Thomas, Diary, no 
Butler, Josephine, Govt, by Police, 

358 
Butler, S., Hudibras, 65 



Caine, Hall, Drink, 364 

Cairns, Lord Chancellor, referred 

to, 302 
Calef, R., More Wonders, 67, 71, 

72 



386 



INDEX TO AUTHORS 



Calmeil, L. F., La Folie, 68, 75 
Ca»U>ridge Nat. Hist., 299 
CampbeU, Harry, Men and Wo- 

nuH, 299 
earlier, F., Les Deux Ptosis, 297 
Carlile, W., quoted, 381 
Carlile, W. and V., Cont. Outcast. 

344 

Carpenter, Edward, Art of Crea- 
tion, 81 ; Prisons, 241, 335, 372, 
375 ; Civilisation, 294 ; loldus, 
294; Die HomogeneLiebe, 2gs ; 
An Unknown People, 295 

Carpenter, Mary, Our Convicts, 

15s. 164 
Carte, A., Hist., 38, 39, 45 
Carter, A. T., Legal Institutions, 

47. S3 ; Legal Hist., 52 
Carter, H. W., Hospitals, 89 
Cams, P.. Hist of the Devil, 68, 82 
Cash, Martin, Adventures, 162, 

164, 166, 168, 169 
Catlin, G., Nor. Am. Indiatis, 293 
Chaboseau, A., Procfs, 259 
Chaddock, C. G., in Text-Bk. of 

Leg. Med., 296, 364 
ChaiUu, P. du. The Viking Age, 

275 
ChaUis, H. W., Law of Real Prop.. 

251 
Chalmers, A., Bio. Diet., 69 
Chambers, R., Book of Days, 257, 

259, 260, 261 
Chapman, Mr. Cecil, quoted, 366 
Charlemagne, Capit., 33 
Charles IV., Emp., Constit., 34 
Chaucer, referred to, 40 
Chavannes, S., Mims. Historiques, 

262 
Cheetham, S., Hist. Chr. Church, 

30.31 
Cherry, R. R., Growth of Crim. 

Law, 24S 
Chevalier,F.,L'/»i;«ri«ot« Sex. 297 
Cheyne and Black, Enc. Bib., 82 
Chitty, Statutes, 204 
Christian, P., Hist. Magie, 71 
Cicero, De Senec, 271 
Clarke, Marcus, Stories of Aust.. 

159, 160, 161, 162, 163, 169 
Clarke, William, in Contemp. Rev., 

353 
Clay, W. L., The Pris. Chaplain. 

174, 186, 187 
Clement V, referred to, 302 
Climacus, St. J., 197 
Clodd, E., Story of Creation, 299 



Clouston. T. S.. Hygiene of the 

Mind, 364 
Clowes, W. Laird, Royal Navy. 

100, 102, 103 
Cluer, Mr., referred to, 302 
Cobbett, W., State Trials. 263, 266 
Cockayne, Oswald, Leechdoms, 78, 

79,80 
Cockbum, A., in Roy. Com. 1863, 

335 
Coghlan and Ewing, Progress of 

Aust., 141, 142, 143, 147 
Coke, E. , Institutes, 2 5 1 . 2 54 
Collet, M., St. Vincent de P.. 104 
Collins, D., Acct. of N.S.W., 53, 

128, 129 
Collinson, Joseph, Flogging, 154 
Colman, W. S., in Lancet, 298 
Colquhoun, P., Police of Met., 109 
Comyns, J ., Digest of Laws, 251 
Conolly, J., Treat, of the Insane, 

78, 84, 85, 86, 87, 89, 90, 267 
Constans, A., Une Relation, 68 
Conybeare, F. C, Early Chris- 
tianity, 280 
Cook, F. C, Commentary, 292 
Cooper, W. M., Hist. Rod, 150 
I Corinthians, 32 
Corre et Aubry, Documents, etc., 

258 
Coulton, G. G., Chaucer, 5, 14, 43, 

49 
Cowper, Lines, 201 
Cox, E. W., Prim, of Punsht.,i09 
Cox, G., Hist. Greece, 294 
Crackanthorpe, M., in Humani- 
tarian, 344 
Crawfora, W., Penis, of the U.S., 

II, 174, 182, 183, 184, 185, 190, 

198 
Crawley, A. E,, in Sociological 

Papers, 301 
Creighton, C, Epidemics, 16, 17 
Creighton, Mandell, criticism by, 

236 
Crosby, E., Tolstoy, 329 
Cubitt, W., referred to. 188 
Cullen, W., Practice of Physic, 85 
Cunningham, J. T., The Common 

Sole, 298 ; Sexual Dimorphism, 

298 
Cushman, L. W., The Devil. 82 



Dalton, M., Country JusOet, 63, 
65 



INDEX TO AUTHORS 



387 



Damhouder, J. de, referred to, 

44 
Damiani, St. Peter, 292 
Daniel, 250 
Darrow, C. S., Resist not Evil, 305, 

371 
Darwin, Charles, Orig. Species, 298; 

Animals and Plants, 299 
Davidson, John, in Westminster 

Caz.. 374 
Davis, H. W. C, Normans and 

Angs., 31, 44 
Davitt, Michael, in Daily Chron- 
icle, 233 
Dean, W. B., Bushrangers, 161 
DemidoS, E., Kamschatka, 293 
Demoor and Massart, Atrophy, 

298 
Demosthenes, Contra Aris., 253 
Dessoir, Max, in Psy. Zeitschrift, 

297 

Devon, James, Crim. and Com- 
munity, 343, 367, 369 ; Study 
of the Crim., 344 

Dhammapada, 339 

Diaz, Bernal, Nouvelle Espagne, 
294 

Diceto, R. de, Works, 46 

Dickens, Charles, Nicholas Nickle- 
by, 94 ; Am. Notes, 199 ; Hist. 
Eng., 278 ; Tale of Two Cities, 
312 ; Bleak House, 331 ; Bar- 
naby Rudge, 339 

Dickinson, G. Lowes, Creek View 
of Life, 294 

Dickenson, W, H., in Daily Chron- 
icle, 343 

Dixon, W. Hepworth, Lond. 
Prisons, 177, 180, 182, 183, 
186, 187, 195 ; Life of Howard, 
185 

Ddllinger, J. G. von. Gentile and 
Jew, 292, 293, 294, 295 

Donne, John, Biathanatos, 276, 
280, 281 

DSpler, J., Theatrum Pcenar. 44, 
2;8 

Dostoevsky, T. M., Maison des 
Morts, 222 

DuCane, E. F., Punishment. 17, 
18, 19, 20, 21, 125, 126. '31. 143. 
144, 145, 146, 147. '9°. 218, 221, 
266, 310, 373 

Duchesne, Louis, Christian Wor- 
ship, 80 

Dufour, P., Hist, de la Prostitu- 
tion, 292 



Dugdale, W., Origines, 12, 22 ; 

Monast. Ang., 41, 42 
Dulaure, J. A,, Hist, des Cultes, 

292 
Duperron, Card., referred to, 261 
Durkheim, E,, Le Suicide, 274 



Eccles, W. M., address by, 347 
Ecgberht, Arbh., Penitential, 6, 

36, 37. 38, 285 
Eden, W., Penal Law, 32, 35, 44, 

335, 362 ; in Hist, of New 

Holland, 100 
Edwards, C, Hammurabi Code, 

338 
ElUs, Havelock, Studies, 297, 298, 

299, 300, 360, 361 
Ellis, Robinson, Catullus, 295 
Ely, R. T., Indus. Society, 323, 324 
Erasmus, Epistle, 292 
Esquirol, J. E. D., Mes. de Char- 

enton, 84, 89 ; Mental Maladies, 

62 
Eton, W., Turkish Empire, 293 
Evans, E, P., Punsht. of Animals, 

44, 256, 257, 258, 259, 260, 261, 

293 
Eveillon, J., Excommunications, 

259, 261 
Exodus, 3, 5, 255 
Eymeric, N., Direct. Inquis., 264 
Ezra, 250 



Falconbridge, A., Slave Trade, 1 50, 

168 
Fanning, W. H. W., in Cath. Enc, 

44 
Farquharson, Major, evidence of, 

208 
Farrar, F. W., Early Days of 

Chsty., 272 ; Eternal Hope, 282 
Farrer, J. A., Crimes andPunshis., 

245. 257. 373 
Ffir6, C, Pathol, of the Emotions, 

297 
Ferri, E., Crim. Soc, 245, 335, 34°; 

Soc. i Crim., 326 
Ferrier, D., Functions of the Bratn, 

364 
Field, J., Pris. Dis., 199 
Finnemore, J., Soc. Life in Eng., 

323 
Finney, J., Hist Aust. Cols., 14°. 

141, 142, 156 



388 



INDEX TO AUTHORS 



Firth, C. H., Protectorate, $6 
Fisher, H. A. L., Pol. Hist. Eng., 

27, 264 
Fiske, J., Old Virginia, 113, 119, 

120, 121, 122, 123 
FitzHerbert, A., Abridgment, 255 
FitzStephen, WiUiam, referred to, 

46 
Five Years' Penal Servitude, 219 
Flanagan, R., Hist. N.S.W.. 139, 

141, 153, 154, 156 
Fleta, 99, 258 

Floumoy, T., Ph&n. de Syn., 298 
Foley, M.,m Bultn.d'Anthrop., 293 
Force, Peter, Hist. Tracts, 100, 

10 1, 120 
Forlong, J. G. R., Rivers of Life, 

292 
Forsyth, W., Trial by Jury, 23, 28 
Fortescue, J. W., Hist. Army, 100, 

lOI 

Fouque, de la Motte, Theodolf, 

275 
Frazer, J. G., Psyche's Task, 248 ; 

PaMsoMias, 253, 256 ; Tafcoo, 291 
Frederick II., Emp., Constit., 33 
Freeman, E. A., William Rufus, 

23. 293 
Fray, L., Manner des Rdtsels, 297 
Friedburg, A., Decret. Col., 26 
Friedlander, B., Eros Uranos, 297 
Froude, ]. A., Hist. ,26s ; Lives of 

Saints, 294 
Furtenbach, J., Arch. Navalis, 102 
Fyfe, H. Hamilton, in Daily 

Mirror, 372 



Gairdner, J., English Church, 47, 

56, 264 
Gallichan, W. M., in Free Rev., 

245 
Galton, Francis, in Soc. Papers, 

247, 286 
Gambrall, T. C, Hist. Maryland, 

120 
Gardiner, S. R., Commonwealth, 

no 
Garinet, J., Hist. Magie, 68 
Garnier, P., Les Fitichistes, 363 
Gasquet, F. H., Henry VIII, 12, 

79 
Gaynor, Judge, in Nor. Am. Rev., 

360 
Geddes and Thomson, Evolution 

of Sex. 299, 300 



Geestelijke, E. R. K., Bibel m 

Vranismus, 292 
Genesis, 259 

George, Henry, quoted, 296, 30 
Gerish, W. B., Herts Witch, 74 
Gerling, R., Das dritte Geschleci 

Gibb, E., Convict Syst. m Aus 

136, 152, 161-162, 166, 168 
Gibbon, E., Roman Empire, 27 

279, 280, 281, 284, 349 
Gibson, A., in Enc. Brit., 94 
Gifford, G., Dialogue, 66 
Gladstone, Lord, referred to, 21 
Glancey, M. F., Characteristic 

172, 196, 197 
Glanvill, Joseph, Saducismus, 6 

69, 72 
Glanville, R. de, de Legibus, 11, : 
Glenelg, Lord, Letters, 142 
Goldsmith, OUver, Citizen of tl 

World, 360 
Good, M., in Humanitarian, 299 
Gordon, Mary, Lecture by, 34; 
Gordon, R. A., in Univ. Mag 

296 
Gordon, W. J., in Leisure Hou; 

311 
Gould, S. Baring-, Curiosities , i< 

258, 259, 260 ; Lives of tl 

Saints, 82 
Grabowsky, W., Mannwb. Natut 

300 
Graham, A., Report on Hulks, i2( 

130 
Grahame, James, Hist. U.S., io( 

114 
Grant, A., Aristotle, 271 
Gravifire, J. de la. Marine dRame. 

102, 103, 104, 105, 106 
Gray, J., York Asylum, 87, 90, 9 
Green, A. S., Hen. II., 34 
Green, J. R., Eng. People, 5, 323 
Green, M. A. E., Dom. State Papen 

117 
Gregory, Pope, Epis., 33 
Gregory, Lady, Cuch. of Muir 

275 
Grey, Lord, Colonial Policy, 14; 

144, 145, 146, 147 
Griffith, George, Unhnoum Priso 

Land, 208 
Griffith, J. G., Crime, 241 
Griffiths, Arthur, Millbank, i2i 

129, 131, 132, 134, 135, 136, 13c 

142, 143, 144, 145, 146, 156, 15; 

158, 160, 173, 177, 179, 181, i8( 



INDEX TO AUTHORS 



389 



200, 204, 215 ; Secrets of the 
Pris.-Hse., 186, 200, 210, 220; 
Fifty Years, 222 ; Mysteries of 
Police, 327, 371 
Grillandus, P., De Sortilegiis, 62, 

71 
Grim. Ed., referred to, 46 
Grohe, M., Der Urning vor Gericht, 

297 
Grose, F., Mil. Antiqs., 99 
Gross, J., Easier Chron., 258 
Grotius, H., De Ver. Chri. Rel., 

292 
Grueber, H. A., Coins, 4 
Guenther, A. F., De Hermaph., 

299 
Gumey, E., Phantasms, 71, 75 
Guyau, J. M., quoted, 248 

H 

Hackett, H. B., Smith's Diet. 
Bib., 292 

Haddan and Stubbs, Documents, 
33.285 

Haeckel, E., Hist. Creation, 299, 
300 

Hahn, J. G. von, Alb. Studn., 293 

Hakluyt, R., Navigations, 104, 
105, 106 

Hale, Matthew, Pis. of the Cr., 34, 
35, 50 ; Tryall of Witches, 69 

Hall, A. C, Crime and Soc, Pro- 
gress, 246 

Hall, E., Chronicle, 17 

HaU, F. T., The Devil, 82 

Hallam, Middle Ages, 261 

Halliday, A., Lunatic Asylums, 

84. 89. 93 
Hamilton, V. M., in Wide World 

Mag: 375 
Hammard, M., in World's Work, 

371 
Hammond, John, Leah and 

Rachel, 113, 120, 122 
Hamon, A., in Univ. Mag.. 248, 

25s 
Hardman, E. T., in Pro. Roy. Ir. 

Acad., 293 
Harrison, J. E., Greek Religion, 

253 
Hartland, E. S., Paternity, 47 
Haslam, J., Madness, 89 
Haug, M., i?e/. of the Parsis, 284 
Haurfeau, B., Ber. Del., 41 
Hawkins, W., Pleas of the Crown, 

109 



Hawthorne, N., Scarlet Letter, 83 
Hefele, C. J. von. Hist. Councils, 

282, 283 
Hening, W. W., Laws of Virginia, 

113, 120, 121, 122 
Herbertus de Boseham, referred 

to, 46 
Hermann, L., Physiology , 300 
Hern, Mr., address by, 310 
Herodotus, 249, 250 
Hertwig, O., Biological Problem, 

298 
HUdreth, R., Hist. U.S., 112 
Hill, M. D., Repr. of Crime, 192 
Hill, R. Gardner, Lunacy, 87, 92 ; 

Non-Restraint Syst., 89 
Hiller, H. Croft, Heresies, 298, 300 
Hingeston-Randolph, F. C, /. de 

Grandisson, 49 
Hirschfeld, M., Geschlechtsiiber- 

gdnge, 297 ; Sappho und Sokrates 

297 
Hoessli, H., Die Unz. des Ges. ,2g7 
Holdsworth, W. S., Hist. Eng. 

Law, 4, 9, 14, 29, 34, 35, 40, 47, 

50. 52, 53. 98, 251 
Holinshed, Chron., 14, 15, 288 
Holmes, O. W., Common Law, 249, 

253, 254, 25s, 256 
Holmes, Thomas, Problems, 233, 

314, 345, 346 ; Known to the 

Police, 340 ; Parole Officers, 376 
Hook, W. F., Archbps. of Cant., 

38, 49 
Hopkins, Matthew, Dis. of Witches, 

60, 63 
Hopwood, C. H., A Plea for 

Mercy, 237 
Horsley, J. W., Prisons and Pris- 
oners, 180, 302 
Horwood, A. J., Year-Book, Ed. I., 

251 
Hovenden, R., Chronica, 5 
Howard, John, State of the Prisons, 

17, 18, 19, 20, 21, 196 ; Foreign 

Prisons, 196 
Howell, James, Letters, 75 
Hudson, W., Star Chamber, 52, 56 
HueSer, O. M., Bk. of Witches, 65, 

72 
Hughes, E. P., Proba. Syst. of Am., 

376 
^TX%o,'Victox,NotreDame, 257, 359 
Hunter, J., Hist. Journal, 129, 

'3°. 133 ,„ , 

Hxad^J.C, Freedom andBondage, 

113. 119 



390 



INDEX TO AUTHORS 



Husband, E., in Daily Mail, 344 
Hutchinson, F., Witchcraft, 62,63, 

64, 68 
Hutchinson, J., Papers, 118 
Huxley, T. H., Lay Sermons, 70 ; 

on Descartes, 305 



Ibsen, referred to, 270 
Ilive, J., House of Cor., 18 
Ingersoll, Robert, Crimes against 

Criminals, 268 
Ingram, J., Sax. Chron., 8, 12 
Ingulph, Croyland, 41 
Irvine, J. A., in Chambers' Enc, 

18, 19 
Irving, H. B., Life of Jeffreys, 54, 

115 ; French Criminals, 307 
IsUp, Arbp., Constitutions, 48 
Ives, George, at Congress of Crim. 

Anthrop., 317 ; in Humane Rev., 

Z77 

J 
Jabelon, Origin of Relig., 292 
James I., King, Daemonologie, 63 
James, WilUam, Psychology, 295 
Janssen, J., Hist. Ger. People, 292 
Jeafireson, J. C, Mdlx. Records, 

109, 115, 118, 119 
Jebb, J., Report, 184, 187. 190, 

198, 200 
Jenks, E., inLaw Q. Rev., 255, 377 
Jesse, J. H., Life of Geo. III., 86 
Jessopp, A., Friars, 45 
Jewitt, L., in The Reliquary, 55,57 
Johnson, John, Ecc.Laws, 1,4, 7, 8, 

26; Laws and Canons, 30, 31, 

32, 35. 36, 37. 38, 40, 42. 44. 

47, 48, 286 
Johnson, Samuel, a criticism, 148 
Johnston, H. H., Hist. Col., 124 
Joly, H., Science Criminelle, 342 
Jones, Hugh, State of Virginia, 122 
Jones, Robert, Nervous Fevers, 85 
Jones, William, Manu, 273, 274 
Jordan, D. S., Fishes, 298 
Josephus, Jewish War, 273, 277 
Jourdanet, D., Bemal Diaz, 294 
Jusserand, J. J., Wayfaring Life, 

99, 100, lOI 

K 
Kan, J. von. Causes Econ., 326 
Kaan, H., Psy. Sex, 297 
Karsch-Haack, F., Ostasiaten, 293 ; 



Naturvolhern, 295 ; Pad. bi 

den Tieren, 300 
Kemble, J. A., Saxons, 4 
Kennedy, W., in Law Mag., 33 
Kiernan, J. S., in Detroit Lance 

296 
Kings, 262 
KipUng, Rudyard, Life's Handicaf 

304 
Kitto, Enc. Bib. Lit., 292 
Klemm, G., Cultur, 293 
Knight, R. Payne, Ancient Art, 29 
Koran, 284 
Krafit-Ebing, R. von, Psy. Sex 

296 ; quoted, 348 
Krauss, A., Psychologie, 293 
Kupffer, E. von, Lieblingminni 

294 



L. J., in Glasgow Her., 376 
Labbe, P., Sac. Concil. (see als 

Mansi), 23, 25, 38, 39, 41, 49, 7 
Lacassagne, J. A. E., Diet, de 

Sciences, 297 ; Crimes sadiques 

363 
Lafitan, J. F., Maeurs, 294 
L'Ancre, P. de, Mauvais Ange; 

67, 72 ; SortiUge, 69 
Lane, Mr., referred to, 347 
Lanfranc, canons, 44 

Lang, J. D., Transportation, 9; 
123, 124, 131, 137, 153 ; His 
N.S.W., 129, 130, 131, 133, 13, 

147 
Langevin, P. G., Falaise, 257 
Langsdorf, G. W. von. Voyage: 

294 
Lappenberg, J. M., Ang.-Sai 

Kings, 2 
La Rousse, Diet. Univsl., 297 
Latham, P. M., An Acct., 177 
Lawson, Wilfrid, story by, 245 
Lea, H. C, Superstition, 23, 24, 2I 

29, 41 ; Hist. Inq. Mid. Age. 

24. 30. 31. 39. 40. 41. 42, 44. 4 
56, 252, 262, 263, 264; Studii 
in Ch. Hist., 32, 33, 34, 37, 4( 
43. 49. 51 ; 1^1 ■ »M Spain, 74 
Sacerdotal Celibacy, 292 
Le Bon, G., in Rev. Scientifique, t 
Lebrun, P., Hist. Critique, 261 

261 
Lecky, W. E. H., Hist. Rat., }' 

68, 70, 71, 73, 74 ; Hist. XVn 
Century, 84, 120, 345 ; Irelait 



INDEX TO AUTHORS 



391 



XVIII Cent., 257 ; Hist. Mor., 

271, 272, 278, 279, 280, 281, 

282, 292, 293 ; Map of Life, 

325 ; Democ. and Liberty, 360 
Lefroy, J. H., Hist. Bermudas, 120, 

242 
Legoyt, A., Le Suicide, 283, 285 
Legrain, Anomalies, 297 
Leland, C. G., The Alternate Sex, 

300 
Letamendi, La Criminalidad, 297 
Letoumeau, C, Evol. Jurid., 248, 

273 ; Sociology, 295 
Leuckart, R., Generationswehels, 

299 
Lewis, W. Bevan, in Fortnightly 

Rev., 303 ; in D. C. 1895, 310 
Liber Albus, 11, 14 
Ligon, R., Hist. Barbadoes, 113, 

120, 121, 258 
Lilly, W. S., Rt. and Wrong, 319, 

33S 
Lindenbrog, F., Codex Legum, 4, 7 
Lingard, J., Hist. Eng., 10, 14, 23, 

3°. 31. 34. 38, 52 
Liseux, J., Sinistrari, 63 
Lisle, E., Du Suicide, 271, 272, 

273, 276, 282, 284 
Liszt, F. von. Droit Crim., 361 
Liszt and Crusen, Auss. Staaten, 

361 
Littledale, R. F., in Enc. Brit., 37 
Livingston, Senator, quoted, 368 
Locke, J., referred to, 270 
Lodge, H. C, Hist. Colonies, 121 
Lodge, Oliver, in Evening News, 

376 
Lodge, R., Hist., 266 
Luard, H. R., Ans. Monast., 43 
Lubbock, J., Org. Civ., 81, 260, 

294, 362 
Lucian, Amores, 295 
Lugaro, E., Psychiatry, 249 
Luke. St., 335 

Lushington, G., in D. C. 1895, 341 
Luther, Martin, referred to, 81, 82 
Luzio, S., in Cath. Enc, 43, 51 
Lycurgus, referred to, 358 
Lydston, C. F., in Phil. Med. Rep., 

296 



M 

Macaulay, T. B., Hist., 263 
McCabe, J., Bib. in Europe, 292 ; 
St. Augustine, 292 



McCarthy, Justin, Four Georges, 

III 
McClaughry, R. W., Parole Syst., 

376 
McConnell, R. M., Crim. Resp., 335 
MacGregor, G., Hist. Burke and 

Hare, 327 
Mackail, J. W., Greek Anthol., 294 
Mackey, C, Pop. Delusions, 63, 

70. 72. 73. 74 
Mackintosh, James, Works, 18, 19 
MacLennan, J. F., Ancient Art, 

292, 293, 294 
Maconochie, A., Reports, etc., 143, 

166 
Macquarie, L., Letters, 130, 138, 

139, 140, 151, 157 
Madden, R., Phantasmata, 68, 69 
Madox, T., Hist. Exch., 9, 22 
Maeterlinck, M., Life of the Bee, 

295 
Mag^usson, E., Thomas Saga, 46 
Maine, H., Ancient Law, 3 
Maitland, F. W., Court Hist., 2, 9, 

10, 14, 22, 24 ; Domesday Book, 

4. 5. 9. 39 ; ^^ Law Rev., 43, 44 ; 

in Eng. Hist. Rev. 46 
Mangin, A., Homme et Bite, 256, 

257, 258 
Manning, H.E. Card., quoted, 302, 
Manning, J. B., in D.C. 1895, 310 
Mansi, J. f).. Sac. Consil. (see also 

Labb6), 282, 283, 284 
Mantegazza, P., Amori, 293, 294, 

295 
Markham, C. R.. Com. of the Yncas, 

292, 294 
Marks, A., Tyburn, 263 
MarshaU, N., Pen. Dis., 2, 30. 39 
Martin of Aries, referred to, 261 
Massie, W., George III., 85, 86 
Mather, Cotton, Invisible World. 

65,67 
Mathieson, W. L., Relig. in Scot- 
land, 292 
Matra, J. M., referred to, 127 
Maudsley, H., Mental Disease, 

322, 326 
Maurice, F., in Contemp. Rev., 330 
Maury, L. F. A., La Magie, 73, 79. 

80, 82, 83 ; Hist, des Religs., 292 
Mayhew and Binny, Prisons of 

London, 172, 189 
Mead, 'R.,Praecepta Med., 85 
Meier, M. H. E„ in Ersch und 

Gruber, 294 
Meiklejohn, J. M. D., Hist. Eng. 



392 



INDEX TO AUTHORS 



20, 35, 40, 85, 98, loi, no, III, 

114, 142, 263, 265, 323 

Meliora, 160, 164, 165 
Menabrea, L., in Soc. de Sav., 256, 

257, 258, 260 
Mendoza, S. de, L'Audition 

Calorie, 298 
Menger, Prof., criticism, 54 
Mercier, C, Crim. Resp., 335 
Merzbach, G., Krank. Er. des Ges., 

297 
MetchnikofE, E., Nature of Man, 

300 
Mews, Har. Digest, 284, 290 
Michelet, J., Life of Luther, 65 ; 

Hist, de France, 263 
Migne, J. P., Patrologiie, 25, 39, 

283, 292 ; Enc, Theo., 63 
Milman, H. H., Hist. Lot. Chty., 2$ 
Mirror of Justice, 2, 11, 12, 13, 258 
Moebius, P. J., Kastration, 297 
Molinier, C, L' Inquisition, 41, 42 
Moll, A., Etude, 292, 293, 364 
MoUoy, B., Insanity in Pris., 230 
Montgomery, H. J. B., in Nine- 
teenth Century, 219 ; in Nat. 

Rev., 372 ; in Humane Rev ., 372 ; 

in World's Work, 377 
Moore, C, Full Inquiry, 280, 283, 

28s, 288 
More, H., Agst. Atheism, 30 
More, Thomas, referred to, 272 
Morfill, W. R., Russia, 252 
Morgan, Joseph, Hist. Algiers, 

104, 105 ; Voy. to Tunis, 105 
Morison, J. Cotter, Kingdom of 

Man, 292 
Morrison, W. D., in Fort. Rev., 

230 ; in Mind, 302 ; Crime, 310; 

at D. Com., 1895, 375 
Morten, Honnor, Consider the 

Children, 330 
Mosheim, J. L., Ecc. Hist,, 26 
Mudie, James, Vindication, 136 
Miihsam, E., Homosexualitdt, 297 
Miiller, C. O., Doric Race, 294 
Mure, W., Ancient Greece, 294 
Murray, T. B., Pitcaim, 168 
Myers, F., Botany Bay, 147 



N 
Nahum, 47 
Napier, C. J., Mil. Law, 147, 149, 

154, 155. 218 
Naud6, G., Hist. Mag., 72 
Naylor, T. B., Letter, 165 



Neal, D., Hist. New Eng.. 63, 68 
Neill, E. D., Hist. Virginia, 108, 

119 ; Virg. Car., 112, 121 
Neugebauer, F. von, Hermaphro- 

ditismus, 299 
NeviU, W. B., Penal Servitude, 377 
Newman, F. W., Dr. of Gerontius, 

171 
New South Wales, Hist. Records, 

124, 128, 129, 130, 131, 132, 

133. 139. 238 ; Official Hist., 

129, 133, 156 
Nicholas I., Epis, 33 
Nicholas, N. H., Chronology of 

History, 281 
Nichols, F. M., ed. of Britton, 9 
NicoU, S. W., Asylums, 87, 91, 92 
Nietzsche, quoted, 2, 367 
Nordau, Max, in La Revue, 268, 

269 ; in Sociological Papers, 353 
Norgate, K., Angevin Kings, 46, 47 
North, R., Life of Guilford, 114 

O 

Ober, E. A., Life of Columbus, 107 
O'Dea, J., Suicide, 272, 273, 274, 

276, 279, 285, 286, 291 
O'Hara, Charles, referred to, 124 
O'Hara, J., Hist. N.S.W., 134 
Oman, C, Hist., 264 
Owen, R., Parthenogenesis, 299, 

300 



Page, W., Assize Rolls, 12, 14 
Paley, W., Evidences, 293 
Palgrave, F., Pari. Writs. 99 
Park, Robert, Fere, 297 
Parkes, H., Aust. Hist., 145, 146 
Pattison, Judge, quoted, 302 
Paul, M. E., trans, of Bloch, 296 
Pearson, C. H., Hist. Eng., 38 ; 

Nat. Life, 294 
Pearson, Karl, Chances of Death, 

61, 65 ; Ethic of Free Thought, 

361 
Peckham, Arbp., Constits., 47 
Peek, Francis, Wreckage, 302 
Peel, "Robert, Letter, 138 
Pegge, S., Bishop Grosseteste, 31 
Penny Cyclopcedia, 258 
Penta, P., Inversione Sess., 297 
Perry-Coste, F. H., Ethics of 

Suicide, 283, 291 
Perz, G. H., Monumenta Legum, 34 
Peter of Blois, Opera, 38 



INDEX TO AUTHORS 



398 



Phillimore, W., referred to, 355 
Phillip, Governor, Letters, 128 133 

137 
Phillips, Marion, Col. Autocracy, 
123. 132, 133, 134, 135, 151, 156 
Pike. L. O., Hist. Crime, 9, 10, 11 

14, 23, 26, 56 
Pinel, P., Trait i, 89 
Plato, Laws, 253, 255, 272 
Ploss, H., Das Weib, 295 
Plowden, Commentaries, 288, 289 
Plutarch, Morals, 295 
Pocock, E., Grotius, 292 
Pollock and Maitland, Hist. Eng. 
Law, 1, 4, 5, 7. 13, 35, 47, 50, 
253. 254 
Poole, S. Lane-, Corsairs, 102, 103 
Poole, W. F., Salem Witchcraft, 74 
Poore, G. V., Harveian Oration, 

319. 348 
Porter, W. Haldane, in Pall Mall 

Gaz., 341 
Prescott, E. Livingston, Scarlet 

and Steel, 214 
Prescott, W. H., Peru, 251 ; 
Philip II., 252 ; Ferd. and Isa- 
bella, 263, 264 
Price, J. M., in Eng. Illus. Mag., 

228 
Prince, Morton, Diss, of a Person- 
ality, 364 
Prix, C. B. Saint-, Tribunaux, 257 
Pronier, E., La Folie, 68 
Pnglia, E., Diritto, 255 
Puigblanch, A., Inq. Unmasked, 

264 
Purchas, S., Pilgrimes, 293 
Purrington, W. A., in Nor. Am. 

Rev., 357 
Pusey, E. B., Letters S. Ambrose, 
292 



Q 
Quick and Garran, Aust. Com., 

156 
Quinton, R. F., Pris. Curr., 138 ; 

Crime and Criminal, 138, 151 
Quiros, C. B. de. Modern Theories, 

195 



Raemond, F. de, Antichrist, 74, 75 
Raffalovich, A., Uranisme, 297 
Ramdohr, F. von, Ueber die Natur, 
297 



Ramsay, J. H., Constitution, loi 
Rawlinson, G., Ancient World, 284 
Reade, A. Arthur, Tragedy of the 

Streets, 357 
Reade, Charles, Hard Cash, 86 ; 

The Cloister, 37 ; Never Too 

Late, 178, 191, 193, 222, 226 
Reclus, E., Primitive Folk, 72 
Rees, J. A., Grocery Trade, 56 
Reeves, Hist. Eng. Law, 22, 23, 

25. 29. 38, 47 
Regnard, P., Maladies de I'Esprit. 

65 
R6nan, E., Marc Aurile, 280 
Reville. A., The Devil, 82 
Reynals, Joseph, remarks by, 373 
Ribot, T., Psy. of the Emotions, 

293. 298 
Richalmus, Abbot, Lib. Rev., 81, 

Richard, Archbishop, Injunction, 

36 
Richards, H. C, in The Sun, 221 
RUey, H. T., Liber Albus. 11; 

Ckron. S. Albani, 42, 50 
Rio, M. A. del, Dis. Mag., 71 
Rivers, W. C, Walt Whitman, 292 
Robertson, E. W., Scotland, 3, 7 
Robertson, J. C, Becket, 13, 46, 

49 
Rock, D., Church of our Fathers, 

34 
Rodwell, J. M., The Koran, 284 
Rogers, J. E. Thorold, Work and 

Wages, 45 
Romer, L. von, Uranien, 297 ; 

in Jahrbuch, 263 
Romilly, Samuel, MSmoires, 147 
Rose, Mr., referred to, 347 
Rosenbaum, J., Plague of Lust, 

292 
Ross, James, Pris. Disc, 233 
Routledge, Robert, Hist. Science, 

81 
Roux, J., Sexual Instinct, 296 
Royston, R., Advt. to Jurymen, 

64 
Ruding, R., The Coinage, 4, 100 
Rufinus, Hist. Ecc, 32 
Rusden, G. W., Hist. Australia, 

132 
Russell, Earl, speech by, 226 
Russell, Lord John, Despatches, 

142, 143 
Russell and Rigby, Making of the 

Criminal, 344, 347 
Rutt, J. T., Burton's Diary, 1 10 



394 



INDEX TO AUTHORS 



Rylands, L. G., Crime, 174, 200, 

203. 238, 302 
Rjmier, T., Foedera, 51, 104 



Sainsbury, W. N., Col. of State 
Papers, 108, 109, no, m, 113, 
IIS, n6, 117, 118, 120 

St. John, Arthur, " Prison Re- 
gime," 378 

Saint Martin, Abb6 de. Etabs. de 
St. Louis, 284 

Salailles, R., L'Ind. de la Peine, 
340 

Saleeby, C. W., in Daily Chronicle, 

345 , 

Salt, Henry S., Corp. Punishment, 

155 
Saxon Chronicle, 12 
Sayers, F., Poems, 275 
Schmidt, R., Gesetze, 4, 5 
Schopenhauer, referred to, 270 
Schrenck-Notzing, A. von, Psy. 

Sex, 364 
Science, Elements of Social, 360 
Scot, Reginald, Witchcraft, 62, 63, 

71. 72. 73. 75 
Scott, R. F., Voyage, 359 
Scougal, F., Silent World, 222, 

224 
Selden, J., Fleta, 99 
Severus, S., Vita S. Martini, 286 
Shakespeare, Henry VI., 49 ; 

Twelfth Night, 71 ; King Lear, 

78 ; M. of v.. 256, 380 ; M. for 

M., 368 ; AlVs Well, 368 ; T. 

of A., 381 
Sharpe, J. B., Madhouses, 87, 88 
Shaw, G. Bernard, Man and 

Superman, 366, 372 ; Letter by, 

360 
Shaw, T. Claye, in D. Com. 1895, 

310 
Shelley, Cenci, 63, 368 
Sheridan, R. B., The Critic, 345 
Shield, A. M., Diseases of the 

Breast, 300 
Shilleto, A. R., Plutarch, Morals, 

295 
Sidmouth, Lord, Letters, 139 
Siebold, C. T. von, Partheno- 
genesis, 299 
Simpson, J. Y., Siberia, 150, 152 
Sinistrari of Demoniality, 63 
Skeat, W. W., Spec, of Eng. Lit., 
98 



Skrine, F. R., Fontenoy, 147 
Smith, Thomas, De Repub. Ang., 

35 
Smith, W., Diet. Biography, 293 
Smith and Wace, Diet. Ch. Bi., 281 
Smyth. A. Watt, Phy. Deter, 330 
Somerville, A., Autobiography, 

149, 150, 152, 154 
Spee, F. von, Caui. Crim., 67 
Spencer, Herbert, in Contemp. 

Reo., 294 ; referred to, 39, 301 
Spina, B. de, Quaestio, 69 
Sprenger and Institor, Malleus, 62 
Spruson, J. J.. Norfolk Island, 

164, 166 
Staeudlin, Selbstmorde, 279 
Stanford, W., Plees de Coron., 35, 

254 
Stanley, A. P., West. Abbey, 27, 28 
Statham. F. R., in Fort. Rev., 

Dec. 1907, 
Statham, S. P. H,, Hist. Dover, loi 
Staunton, G., Code of China, 273 
Stead, W. T., in Rev. of Revs., 291 
Stedman, T. L,, Twen. Cen. Prac., 

300 
Steinmetz, S. R., Strafe, 248, 250 
Stephen, H. L., State Trials, 64, 

69, 70 
Stephen, James, Ecc. Biog., 42 
Stephen. J. F., Hist. Crim. Law, 

12, 13. 14, 15, 34, 35. 36, 50, S3. 

54. 98. 99. 251. 335 
Stephens, W. R. W,. English 

Church, 45, 47 
Stem, B,, Turhei, 293 
Stewart, R. P., Report, 165, 166, 

168 
Stith, W., Hist. Virginia, 108 
Strahan, S. A. K., Suicide, 231, 

272. 273. 27s. 276. 278, 279, 286, 

287, 290 
Stratford, Arbp., Ordinances, 31 
Stubbs, W., Const. Hist., 2, 3, 5, 

6, 9, 10, 12, 23, 30,40 ; Charters, 

5, 10, 22, 23, 31, 45; in Ecc. 

Cts. Com., 40. 44 
Swiney. Frances, in West. Rev., 300 
Sydney, Lord, Letter, 124 
Symonds, J. A., Key of Blue, 294 ; 

Prob. Greek Ethics, 294 ; Prob. 

in Mod. Ethics, 297, 360 



Tacitus, Germ., 2 

Tallack, W., Pen. Prins.. 95. 173. 



INDEX TO AUTHORS 



395 



186, 187, 368 ; Repar. for the 

Injd., 377 
Tamowsky, B., Sexual Instinct, 

296 
Tayler, J. L., in Soc. Papers, 298 
Taylor. I., Hist. Alphabet, i 
Taylor, Dr. M., referred to, 373 
Taylor, T., Max. Tyr., 295 
Tench, Watkin, Exp. to Botany 

Bay, 128, 13:, 132; Acct. of 

Port Jackson, 130, 133, 139 
TertuUian, quoted, 82 
Theodore, Arbp., Penitential, 6, 

38 
Therry, R., Thirty Years' Res., 1 34, 

136, 138, 142, 152, 161, 170, 204 
Thirlwall, C, Greece, 294 
Thorns, W. J., Prose Romances, 37 
Thomson, Basil, Dartmoor, 201 
Thorpe, B., Ancient Laws, i, 3, 4, 

5. 6, 7, 8, 22, 25, 37, 38, 39, 99, 

255 
Thrupp, J., Ang.-Sax. Home, 2, 

3. 5. 6, 7. 8. 31. 37. 99 
Ticket-of-Leave Man, A., Convict 

Life, 377 
Todd, J. H., Life of St. Patrick, 

280 
Traill, R., Josephus, 277 
Troup, Mr., referred to, 269 
Tucker, G. A., Lunacy, 89 
Tuckey, C. Lloyd, at Brit. Med. 

Soc, 364 
Tuke, D. H., Hist, of the Insane, 

78, 83, 85, 86, 87, 88, 89, 91, 92, 

94 
Tuke, J. B., in Enc. Brit., 77, 84, 

89, 92 
Tuke, Samuel, The Retreat, 90 
Tulloch, J., in Enc. Brit., 82 
Tumbull, J., Voyage, 293 
Turner, G. J., Pleas of the Forest, 

I, II 
Twiss, T., Bracton, 23, 24 
Tylor, E. B., in Enc. Brit., 22, 82 ; 

Prim. Cul., 76, 77, 79. 80, 81, 

82, 253 
Tyrius Maximus, 295 
Tytler, A. F., Mil. Law., 147 



U 

Ullathome, W. B., Mem. of Bp. 

Willson, 144, 164, 165, 166, 168 ; 

Autobiography, 164 
Ulrichs, K. H., Works, 297 



Vair, L., referred to, 261 
Vaux, J. H., Memoirs, 125 
Verdun, P., Le Viable, 79, 80, 82 
Vasalius, referred to, 296 
Villette, J., Annals of Newgate, 55 

W 
Wake, C. S., Colour-Music, 298 
Walcott, M. E. C, St. Mary's 

Hasp., 100 
Wallace, A. R., in Humane Rev., 

376 
Ward, H. S., Cant. Pilgrims, 265 
Watson, J. S., Xenophon, 29s, 

358 
Watta, Inspector, in West. Gaz., 

373 
Webster, J., Witchcraft, 66 
Weininger, Otto, Sex and Char., 

299. 364 
Weissmann, A., Heredity, 299 
Wells, H. G., Anticipations, 361, 

368 
Wesley, John, in Arm. Mag., 70 
West, John, Hist. Tas., 130, 151. 

159, 164, 165, 167, i68, 237 
Westcott, Wynn, Suicide, 271, 

272, 273, 278, 279 
Westermarck, E., Moral Ideas, 3, 

7. 25, 47. 77. 78. 89, 99, 253, 254. 

255, 258, 262, 278, 287, 335, 338 
Westphal, Prof., in Arch, fiir Psy., 

296 
Westropp, H. M., Prim. Symbol- 
ism, 292 
Whately, Arbp., Secondary Pun., 

142. 244 
White, Charles, Convict Life, 128, 

129, 131, 133, 136, 139, 151, 152, 

153. 154. 157. 158. 164, 167, 169 
White, G., Selbome, 300 
White, John, Voyage to N.S.W., 

128, 129, 149 
White, Hon. Robert, in Nineteenth 

Century, 234 
Whiteway, A. R., Penal Science, 

239. 245. 309. 311. 335. 340. 349. 

360 
Whitney, W. D., Cent. Diet., 299 
Whitteker.T. P., Drink Prob.. 301 
Whittaker, W. J., Mirror, 11 
WUda, E., Strafrecht, 255 
Wilde, Oscar, Ballad, 84, 224 ; 

De Profundis, 211, 222, 373 
Wilkes, J., Ene. Land., 15 



396 



INDEX TO AUTHORS 



Vmkiiis, D., i_'jv.-, 6 

"WTHkinstm, J. G".. Amc. Egyptimits, 

WtI^',^-^ {rf CanTerbary. 46 
Williin of Xewbnrv, j^; 

WflKams, J., in £i>c. Bri;.. 6;. ;x) 
Wffliains. W. R.. ri-.'^c';,; }f /i; 

Sr;.i.c;. 300 
WiUis. F.. Utxtml Darmx^^memt, 0^ 
WHJcTi^-bv. L.. in PmU .ViT; 

■Wilmot, iL. EaidleT, Letters, 105, 

166. 16- 
"VViJjert, J. voa. B.ts RteU S^s 

Wilscm, Albert. rKrinisAai Mm. 

310 
Wilson, Times. r.-^^\ai:r. 29; 
"WHscttl. T.. 3.":<«-c'jri. -05 
Wilson. W., C.>"!. c/ A Us.. 2^ 
Win^, F. H., Pint, aitd R;f.. iSz 



Wintborp. J., Hist. .V«r. Eng., 

Wirx. Cosper. P^ Z'rj'iisr. 2:12 
Wright, Mr. , in 1?. C, <»« Li-'. Zioas, 

Wrisbt. T., .-!»X-? A"vi<firy. 64 ; ^isi. 

i?v-1«. MSK.. X2l 

Wyntra-, Andrew. S.-^i. Lmad 2- 
iKsan., S;, 86, a;. 05 

X 
XraiophcHi, itimor Wcris. :o^ 
Xecses. referred ro. .:-tp 



^"'i.-j..', iiv-.v. CifmmeKt. - Us, ::o;, 
Yoa^. C. P., AAaimaais, 235 

Z 

Zaccone. P.. Kisi, ies Bmgius. 107 



SUBJECT INDEX 



Abnormal powers possibly existed 

in certain persons accused of 

witchcraft, 70 
" Accumulation," a word meaning 

much to prisoners, 225 
Acedia, or monastic melancholy, 

285 
Acton, William, trial of, 20 
Africa, West, convicts sent out to, 

123 
Allen, Dr. C. W., on the need of 

scientific investigations, 301 
Ancyra, Council of, adjudicates 

upon a case involving a suicide, 

A.D. 314, 282 
Anderson, Major, a Governor at 

Norfolk Island, 166 
Animals acquitted on grounds of 

character and youth, 259 

— considered in all respects amen- 
able to the law, 256 

— cnminal, kept in the common 
prisons, 256 

— criminous, to be delivered up 
to the injured party, or damage 
done to be paid for, 255 

— defended by counsel, 256 

— domestic, tried by the ordinary 
criminal courts, 256 

— drawn into sexual offences, 258 

— duly served with summonses to 
appear, 260 

— guilt fuUy imputed to, 256 

— involved in cases of witchcraft 
and sorcery, 257 

— letters addressed to, 261 

— might be called to be witnesses, 
256 

— occasional imprisonment of, 
257 

— proclamations issued to, 260 

— punishment of, 254 

— sometimes put to torture, 257 



Animals subjected to ecclesiastical 
curses, 259, 260 

— tried with the reading test, 257 
Animals, wild, came within the 

jurisdiction of the courts Chris- 
tian, 256 

Animism, still shown in the bless- 
ing of warships, rivers, houses, 
etc., 253 

Apparitions, suggestion and self- 
deception in connection with, 62 

Aquinas, Thomas, criticism of 
profit-making, 324 

Aristotle on suicide, 271 

Aries, Council of, condemns ser- 
vants who should kill them- 
selves to injure their masters 
(Fifth Century), 282 

Asquith, Mr., committee ap- 
pointed by, 217 

Assignment of convicts to private 
persons stopped, 142 

Assizes, long intervals between, 1 1 

— prisoners linger and die whilst 
awaiting, 11, 14 

Asylum-prisons, need of, for the 
deficient, 379 

Asylums, private, persons im- 
prisoned in, 85 

Augustine, St., turns the Christian 
world against suicide, 281 

Auxerre, Council of, refuses to 
receive oblations for suicides, 
A.D. 578, 283 



Baker, Colonel, evidence of, 232 

Bambridge, trial of, 20 

Bane, anything that occasioned 
death was called the, 253 

Barbadoes, prisoners sent to, 160 

Battle, wager of, 23, 24 

Baxter, Richard, believes in witch- 
craft, 67 



397 



398 



SUBJECT INDEX 



Becket, alleged trial of the body 
of, 265 

Becket, Archbishop, defends the 
Church privileges, 46 

Begging scholars from the uni- 
versities to have papers with 
them, 100 

Bekker, Dr., throws doubts upon 
the action of devils, 67 

Bells rung to scare away demons, 

73 
Bell of La Rochelle, punished and 

baptised, etc., 252 
Benefit of clergy came to be 

granted to o£Eences, not persons, 

S3 

gradually taken away, 52 

Bermuda, prisoners sent to, 1 10 
Bethlem asylum, founding of, 84 
Bigamy, nature of, 361 
Birching considered a triiling 

punishment on the Hulks, 125 
Bishops constantly urged to hold 

fast to their prisoners, 47, 50 

— extensive judicial powers of 
the, 30 

— possessed their prisons, 42 
Black Death, the, 14 
Blackmail, encouragement of, 353 
Blackmailing assisted by puri- 
tanical laws, 356 

Blind men could claim clerkship 
if they could speak Latin, 35 

Bodin criticises Wier's book, 66 

Body-stealing abolished by sup- 
plying the surgeon's needs, 327 

Boiling aUve, 14 

Boilman, William, one of Jeffreys' 
assistants, 263 

Bondage, terms of fixed by 
Colonial laws, 113 

Boot-cutting maniac, a, 362 

Bourke, Sir Richard, insists on a 
standard "cat," 151 

Bourquelot claims St. Augustine 
as the first Christian opponent 
of suicide, 281-2 

Boy prisoners, sad fate of two, 

233 
Braga, Council of, forbids funeral 

rites to all suicides, a.d. 563, 

283 
refuses to allow Christian 

burial to suicides, a.d. 563, 283 
Branding on the hand, alternative 

penalties substituted for, 1779, 

S3 



Branding upon the face, in vogue 
for a very brief period, 53 

— upon the thumb of those 
who could read, for their first 
offence, 52 

Brank or witch's bridle, the, 57 
Bread and water for the Church's 

prisoners, 42 
" Breaking out," horrible cases of. 

Bridewells, origin of, 1 5 
Brinvilliers, Marquise de, tortured 

before execution, 197 
Broi, P. de, case of, 46 
Bulgarians ordered to refuse 

Christian burial to suicides, 283 
Burning, for various offences, 14 
Bushrangers often compelled by 

cruelty to take to that life, 161 

— often redeemed by good quali- 
ties, 161 



Cakebread, Jane, case of, 345, 346 
Candles, etc., eaten by convicts, 

209 
Capital offences multiplied by the 

private Members, 18 
number of, in practical use, 

19 

— punishment, some dreadful al- 
ternatives, 365 

Carelessness, evidence of popular, 

240 
Castration an old punishment for 

rape and other offences, 6, 13 
Cat-o'-nine tails (see also Whip), 

150 
Cell, feelings engendered by bemg 

shut up in, 229 

— horrors of the, 229, 374 

— prisons, a reaction against other 
and previous evils, 173 

beginnings of the, 171 

started end of the eighteenth 

century, 173 
Cells are much too like cellars, 174 
Ceorl or husbandman, man-value 

of, 4 
Chains (see Irons), i ;8 
Chambre Ardente, the, 67 
Channel, fare for crossing the, 10 1 
Chaplain, a sulphurous, 187 
Chaplains have no time to visit 

their charges, 219 

— in the position of junior officers, 
216 



SUBJECT INDEX 



399 



Chaplains tend to become officers 
in orders, 375 

— unchanging routine of, 220 
Chapman, Captain, Governor of 

Millbank, 178 
Chatham, self-mutilations at in 

the 'seventies, 207 
Child, illegitimate, hard labour 

sentence for having an, 189 
Children, cruelty to, sometimes 

caused through insanity, 367 

— endure lengthy terms at Mill- 
bank Prison, 179, 180 

— heard sobbing night after night : 
Major White's experiences, 234 

— illegitimate, great numbers 
drift to the Hulks and gaols, 126 

— of outlaws, ban upon the, 99 

— sentenced to transportation, 

130 

Childs, Major Joseph, a governor 
at Norfolk Island, 166 

Christians forbidden to bring cases 
before heretical judges, 30 

" Chummage " from prisoners ex- 
torted, 20 

Church, Rule of the, 29 

— the, claims autonomy, 32, 33 
Civilisation still barbarous, 325 
Clarendon, Assize of, 10 

— Constitutions of, 46 

Clarke, Marcus, description of the 
prisoners at Port Arthur, 162 

Class distinctions allowed, 38 

Clay, Rev. John, his notions of 
(Uscipline, 183 

Clement XI., Pope, builds San 
Michele Prison on cellular prin- 
ciples, 1703, 172 

desired to copy the monastic 

discipline, 196 

Clergy, benefit of, 34 

— usually kindly gaolers, 49 
Clerks, immunity of, arouses the 

anger of the secular powers, 45 

— seldom totally degraded ex- 
cepting for obstinate heresy, 

44 

— to be branded on the thumb 
when convicted, 50 

— when convicted no longer sent 
to the Bishops to make purga- 
tion, 1576, 52 

Clonmell case, the, 70 
Cock's eggs, the alleged, 258 
Colour-hearing, phenomenon of, 
298 



Compensation, idea of obscured 
in later times, 10 

— importance of, 340 

— of persons injured should be a 
principal aim, 377 

Complaints, hopelessness of 
making, 209, 210 

— prisoners always punished for 
making, 210 

Compurgation, 28 

Conduct of the crowd can largely 
be estimated, 322 

Continental prisons, such as those 
of Belgium, Italy and Prussia, 
worse than our own, 371 

Contractors for transporting con- 
victs, 109 

Conversation between the very 
ill, alleged corruption in, 22 1 

Conviction, chances of escaping, 
244, 245, 246 

Convicts, assigned, at the mercy 
of their masters, 136 

to the government or as 

servants, 135 

— became indentured servants 
upon landing in America, 122 

— frequently transported them- 
selves, 109 

— often, like children, devoid of 
all forethought, 238 

— received lands and outfits in 
America when they had served 
their time, 122, 123 

— returning before their time 
Uable to be executed, 1 1 1 

— upon the ships of the great 
explorers, 107 

— weakened state of, upon dis- 
charge, 232, 234 

Cook, Captain, discovers Australia, 

1770, 127 
Corpse of King Enna interred with 

that of a dog, 262 

— produced at the legal bar, 265, 
266 

Corpses brought to trial and dug 
up by the Inquisition, 263, 264 

— flogging of, 262 

— letters addressed to, 261 

— of criminals still dishonoured by 
being buried in quicklime, 266 

— preserved in pitch, 236 

— punishment of, 261 
— trial of, 262 

Courts-martial try convicts beyond 
the seas up to 1833, 156 



400 



SUBJECT INDEX 



Crank, labour at the, 190, 193 

— the, 190 

— varieties of the, 1 9 1 
Crawford, William, a prison in- 
spector, 182 

his ideas about prison labour, 

183 
Creighton, Bishop, a saying of, 236 
Crime, main causes of, 332 

— true, is human parasitism, 268 

— workers of the old methods see 
no hope of eliminating, 371 

Crime-rate affected by social 

changes, 324 
Crimes are divided into two great 

classes, 267 
Criminal, the common, nature of, 

341 

— the real man, gambled in 
chances, 238 

— the, so far ever present amongst 
us, 321 

" Criminal," the, of popular im- 
agination, 336 
Criminals created by prisons, 372 

— are waste-products, 334 
Cromwell, Ohver, body of, dug up 

and hanged, 266 
Cross roads, burial at, 287 
Cynebot or tribal claim for a King, 

the, 4 
Cyrus, vengeance of, on the river, 

250 

D 

Dark cell, punishment of the, 178 

— cells, weak-minded prisoners 
placed in the, 215 

Dartmoor prison employed for 

convicts, 1850, 202 
Death, choice of, might be given 

to the condemned, 369 
Debtor, a, to receive 25. ^d. a week 

from detaining creditor, 20 

— might be cut in pieces and so 
distributed among his creditors, 
256 

— might be sold to pay debt, 5 

" Decanica," or cells of the Church, 
40 

Degradation from orders simpli- 
fied in the sixteenth century, 5 1 

Degraded clerks not to live in the 
world as laymen, 44 

to be handed over to the 

secular arm, 43 



Demons, supposed to receive the 
stripes inflicted on the pos- 
sessed, 83 

Deodand, anything actively caus- 
ing death became, 254 

Deodands, the, 253 

" Deterrence," found not effected 
by the most terrible penalties, 

237 
Devil, felony by statute to feed or 
reward any, 64 

— human character of the, 81, 82 
Devil's book, the, 61 

— mark, the, 63 

Devils, supposed numbers of, esti- 
mated, 68 

— supposed to occasion insanity, 

79 
Dickens, Charles, describes a visit 

to a cell-prison, 199 
Discipline, the word often a 

euphemism for torment, 188 
Disease regarded as a personal 

thing, 81 
Dock, some prisoners considered 

too filthy to be placed in the, 

331 
Dogs employed to guard roads, 

160 
Donatists, sect of the, 281 
Doomsdale or felon's dungeon, the, 

16 
Dreams, deceiving, sent by gods, 81 
Drink bill, an estimate of the 

national, 301 

— effect of, in the production of 
crime, 302 

— forbidden in prisons, 1785, 20 
Drunkenness, various kinds of, 

345 
Ducking stools used for scolds, 57 



E 

Eagle Hawk's neck, an isthmus 
leading to Port Arthur, 160 

Ecclesiastical courts, rise and 
power of, 31 

warrant officers of, 3 1 

— punishments generaUy merci- 
ful except against heresy, 36 

Effeminati, the, 292 

Eldon, Lord, opposes asylum re- 
form, 92 

Emancipists' conflict with the 
free settlers, 140, 



SUBJECT INDEX 



401 



Emotions cannot be explained, 
300, 301 

— gamut of the, wider than 
generally apparent, 301 

Employment generally absent in 
the old prisons, 21 

— intelligent, needed for prisoners, 
376 

" Euryalus " hulk for boys, the, 
126 

Evidence from any possible 
quarter received against witches 
and heretics, 72 

Ex-convicts often set an impos- 
sible task, to recover character, 
381 

Exorcism, practice of, 79 

Exorcists formed into an order, 79 



Familiars or Imps, often domestic 

pets, 61 
Fasts imposed by the Church, 3^ 
Felony Act of 1870, 289 
Ferri, Professor : crime the result 

of the prevailing social system, 

326 
Fetishes, power conveyed to, 

through tiieir votaries, 247 
Fetters to be light for the un- 
tried felons, thirteenth century 

(see also Irons), 11 
Fines a large source of revenue to 

the Crown, 9, 10 

— imposed for the gravest crimes, 
3 

upon places for crimes com- 
mitted, 9 

— much heavier than they read, 4 

— unequal effects of, 342 

" First Fleet " saUs, 1787, 128 
" Flagellum," the Roman, 149 
Fleet, the Second, reaches Port 

Jackson, 1790, 131 
Floggers appointed to convict 

camp, 158 
Flogging alleged to be the most 
merciful of the prison punish- 
ments, 227 

— considered to be a relief from 
unendurable monotony, 226 

— Dr. Barnes's criticism of, 155 

— effects of upon the victims, 149, 
152, 153, 154 

— futility of for cases of passion, 
3SI 

26 



Flogging of convicts after loss of 
limbs, 208 

— of lunatics, reasons for the, 81 

— of servants on the plantations, 
121 

— of women up to 1817, 54 

— practised upon inanimate ob- 
jects to attain skill, 140 

— recommended for lunatics, 85 

— terrible character of, in the 
army and navy (see also Whips), 
147, 149 

— the universal " remedy " in the 
past, 147 

— time in hospital after, 1 52 

— time taken in inflicting a, 1 54 

— to be carried out with the ut- 
most publicity, 148 

Floggings, severe, at MUlbank 

Penitentiary, 178 
" FreewiUers," the, who worked 

for their passage to America, 

112 



Galleys, crews of, composed of 
prisoners of war, slaves, and 
convicts, 103 

— supplanted by the heavier 
sailing ships, 106 

GaUey slaves fastened to their 
benches, 102 

often sentenced for life, 104 

sometimes people of rank, 

105 

the, 102 

Gallows, robberies committed be- 
neath the, remarked on by 
Statute, 148 

Gaolers, unlimited powers of, 16 

Gaol fees extorted by ill-treat- 
ment, 20 

— fever kills more than the hang- 
man, 18 

spread by vermin, 1 7 

" Garnish " money extorted, 20 
Garrotters, the, had mostly passed 
through the "model" dis- 
cipline, 204 
George III. flogged and ill-treated 

while insane, 86 
George, Henry: a social problem 

impUes a social wrong, 296 
Gibraltar, convicts sent to, 145 
Gilles, de Retz, case of, 263 



402 



SUBJECT INDEX 



Glas, opaque, iniquity of employ- 
ing. 2;S 

present Commissioners abol- 
ishing, 223 

GlcinviU pleads for belief in mtch- 
craft, 67 

— urges the theological argument, 
69 

Grants of money to discharged 

convicts reduced, 206 
Gratian, Decretals of, 3 1 
Guy, Dr., evidence of, 226, 22/ 
Griffiths, Major Arthur, on the 

effects of solitude, 200 
Group-parasitism, existence of, 

Guarantee fund, proposed to be 
earned by, and administered 
for, ex-pnsoners, 382 

H 

Hale, Sir Matthew, says all nations 
have made laws for suppressing 
witchcraft, 69 
Hales, case of Sir James, jSS 
Hammurabi, Laws of, 338 
Hand, burning on the, for those 
who claimed clerkship, 50, 53 

— hanging by the, a prison pun- 
ishment at Norfolk Island, 168 

Hangman appointed with the rope 

round his neck, 129 
" Hashemy " convicts, opposition 

of colonists to landing of, 1849, 

145 
" Heals-fang," a name for the 

piUory, 55 
Heretics to be burned at the stake, 

45 

Hermaphroditism, prevalence of 
in nature, 299 

Homosexual instinct, historical 
review of the, 292 

Hooligan, nature of the, 343 

Hopeless oSenders better des- 
troyed, 367 

Hop^ns, Matthew, the witchfinder 
general, 58 

— alleged to have been " swum " 
and exposed, 64 

Hospital cell, visit to a, 222 

— "' model " cell, prisons often 
without any, 193 

— the gaol paradise, 220 

— ship, disgraceful conditions 
upon the, 126 



Hospital, warder, a, of the bad old 

school, 223 
Hospitals, separate cells in, 231 
Houses and villages laid waste for 

crimes of their owners, 250, 251, 

252 
Howard, John, 17 
responsible for much sufier- 

iag, 185 
Hulks, lunatics frequently found 

on the, 125 

— the, 124 

— tobacco allowed on the, 125 

— used until 1858, 126 

— young boys upon the, 126 
Hymn-books marked with the 

broad arrow, 220 
Hypnotism, suggested treatment 
by. 364 



Imitation, influence of, 359 
Imprisonment a means of extort- 
ing fines, 13 

— as a punishment nnusual in 
ancient times, t, 13 

— preliminary, insisted on for 
those sentenced to transporta- 
tion, 143 

Incest Act, dangers of the new, 246 
Indentured labourers, value of. 1 13 
Innocent VIII. issues his BuU 

against witches, 1484, 65 
" In Pace," dreadful puni^ment 

of. 43 
Infangthef , right of, 9 
Inquisition, prisons of the, 41 
Insanity, high rate of in prisons, 

230 

— physical origin of, gradually 
recognised, 93 

Instincts, innate, older than his- 
tory, 294 

Inverts, sexual, resemble the left- 
handed, 292 

Irish convicts, deplorable condi- 
tion of the, on release, 232 

Ironed gangs, dress worn in the, 

157 
length of time served in the, 

158 

numbers sent to the, 157 

the, : 56 

the chains worn by those in 

the, 158 



SUBJECT INDEX 



403 



Irons of enormous weight worn 
at Norfolk Island, 164 

— of untried prisoners to be light, 
thirteenth century, 1 1 

— on shipboard, usual weight of, 

131 

— prisoners on the Hulks kept in, 
125 

— retained even in hospital, 1 58 

— slave, employed on the Second 
Fleet, 131 

— upon the voyage how long re- 
tained, 132 

IsUp, Archbishop, tightens the dis- 
cipline of the Church's prisons, 
48 

Ives, George, address before the 
Congress at Cologne, 317 

Ivo of Chartres, collection of 
Canons, 31 



Jamaica, prisoners sent to, 112 
Jebb, Sir J., on state of sohtary 

prisoners, 198 
" Jo " moved on, to the setting 

sun, 331 
" Josephs," name and fate pf the 

boy, 192 

K 

Kidnapping, Bill against, with- 
drawn, 1673, 118 

— Bill to make it a capital offence 
introduced, 1669, 117 

— Government endeavours to sup- 
press, 116, 117 

— Judge Jeffreys denounces the 
Mayor of Bristol for, 114, 115 

— practice of, widespread and 
organised, 113 

— punishment of, generally Ught, 
118-19 

King James I. a believer in magi- 
cal practices, 67 

Koran, suicide forbidden in the, 
284 



Labour, difficulty of securing suffi- 
cient healthy, inside the prisons, 

377 
— hours of in Australia, 135 
L'Ancre, P. de, claims support for 

beUef in witchcraft from the 

Bible, 69 



Land, generally insufiScient within 
the wall, 377 

— granted to colonists who im- 
ported persons, 112 

to convicts who had served 

their terms, in Australia, 133 

Law, criminal, conspiracy to re- 
strain, 19 

Leo XIII., Pope, a prayer of, 80 

Lepanto, battle of, 106 

Liberty, the cure for excess of, 359 

Life sentences, regulations con- 
cerning, 225 

Lisle remarks that suicide was 
condemned after the appearance 
of St. Augustine's book, 282 

Locke, John, the three things 
which govern mankind, 270 

Long-sentence prisoners most in 
need of assistance, 378 

Louis IX. orders confiscation of 
goods which had belonged to 
suicides, 283 

" Luck," strong belief in, by the 
uneducated, 240 

Luddites or machine breakers, the, 

138 
Lunatics, criminal, ghastly state 
of those in Port Arthur, 163 

— generally kindly treated in 
Pagan times, yy 

— horrible state of in the nine- 
teenth century, 86 

— reckoned among the " sights," 
and exhibited, 89 

— wandered about in the earlier 
period, 78 

Luther, Martin, believed in devils, 

65 

M 
Maconochie, Captain Alexander, 

revolutionises the discipline at 

Norfolk Island, 166 
Malingering perpetually practised, 

220 
Manu, laws of as to suicide, 274 
Martyrdom, desire for amongst 

early Christians, 280, 281 
Masks worn in the cell-prisons, 

172, 186 
Mather, Cotton, justifies persecu- 
tion of witches, 67 
Maudsley, Dr. : criminals, hke 

other things, are manufactured, 

326 



404 



SUBJECT INDEX 



Mental cultivation should be en- 
couraged in prisons, 378 

Mill, J. S., on prevailing beliefs, 
269 

Millbank Prison commenced, 18 12, 
176 

— at first a plaything of society, 
177 

— the epidemic at, 177 
Minorca, some convicts sent to, 

1713, 109 
Minorities seldom fairly treated 

in a democracy, 230 
Monks flogged with thirty-nine 

stripes, 40 

— imprisoned in the monasteries, 

41 
Monsters, erroneous ideas as to 

production of, 258 
Montaigne : things are what we 

think them, 27 
Mooney, the tragedy of convict, 

Port Arthur, 1870, 163 
Morals, clergy more anxious con- 
cerning, than about common 

humanity, 165 
Morocco, prisons in, 195 
Multitude, the, always shaped by 

surroundings, 325 
Murderers, proposal that they 

should be kept for the cannibals, 

127 

— to be bound to the bodies of 
their victims and drowned or 
interred with them, 127, 128 

Music employed in treating in- 
sanity, 80 

Mutilated criminals let loose as 
visible warnings, 8 

Mutilation a common primitive 
punishment, 8 

— might precede hanging for 
aggravated offences, 14, 1 5 

Mutilations inflicted on friends as 
a kindness, 220 

— self-inflicted, by prisoners, to 
be put into hospital, 169 

N 

Naylor, James, has his tongue 
pierced for blasphemy, 56 

" Neck verse," the, 35 

New South Wales, ceases' to re- 
ceive convicts about 1840, 143 

Nihil, Rev. D., Governor-Chap- 
lain at Millbank, 179 



Nihil, Rev. D., carries out solitary 

confinement to a deadly extent, 

181 
Nimes, Synod of, confirms decrees 

against the Christian burial for 

suicides, a.d. 1284, 284 
Norfolk Island, 163-' 

at its worst after 1826, 164 

■ hospital at, 169 

mutiny at, 167 

prison dress worn at, 164 

Sir R. Therry's description 

of the appearance of prisoners 

from, 170 

the deepest hell of all, 167 

Norris, fate of Mr., in Bethlem 

Asylum, 87 
" Noxal surrender," 255 
'• Nut-Brown Maid, the," 98 



O 

Gates, Titus, flogged with a six- 
lash whip, 54 

Oath, value of, varied according 
to a man's rank, 3 

Officers generally made hard by 
their duties, 222 

— prison generally better than 
the system, 216 

Ordeals condemned by the Council 
of Lateran, 23 

— the various, 21,22 

Orleans, Council of, forbade ac- 
ceptance of oblations for sui- 
cides, A.D. 533, 282 

Outcasts, numbers found in the 
streets, 331 

Outlaws, 99 



Pain for wrong an erroneous 
theory, 339 

— occasional absence of under 
torture, alleged, 71 

Parasites, human, the hardest to 
capture but the easiest to deter, 

341 
Parks, perils of the, 357 
Partridge, alleged homosexuality 

of the, 30 
Penal Settlements, convict dress 

worn at the, 162 
the Australasian, 158 

— servitude began in 1855, 202 



SUBJECT INDEX 



405 



Penal servitude, preliminary se- 
paration fixed at nine months, 
203 

Penances, how bought off, 39 

— sometimes performed vicari- 
ously, 39 

Penitential Discipline, the, 36 

Penitentiaries, early American, 
173-S, 182, 183 

Penitentiary, the Eastern, of Phi- 
ladelphia, 184 

Pentonville model prison, 1842, 186 

Pepper mill, men sent to work in 
as a punishment at Norfolk 
Island, 168 

PhilUp, Captain Arthur, selected 
to take out the First Fleet, 127 

Pilgrimages imposed, 37 

Pilgrims assisted along the road, 
10 1 

— wore sheUs, etc., often of lead, 
as badges, according to places 
visited, 37 

Pillory, ears sometimes nailed to, 

55 

— occupants of the, occasionally 
pelted to death, 55 

— the, 55 

Pishogue mark, the, 59 
Plato's view of suicide, 272 
Plead, terrible penalties for re- 
fusing to, 12 
Poetic punishments, the, 54-7 
Pogrom, an early Puritan, 263 
Pole, Cardinal, bums some bodies 

and books, 265 
Population of England in early 
times, 98 

— wandering, very large, 99 
Port Arthur, 160 

" model " chapel at, 162 

— Macquarie, dismal prison at, 

159 
Portland Prison opened, 1848, 201 
Pretanaeum, court of the, in- 
animate objects tried at the, 

253 

Prevention of crimes better than 
securing convictions, 376 

Price, Mr. John, appointed 
Governor at Norfolk Island, 167 

" Prickers," the common, who 
probed for the painless spot, 6$ 

Prisoners, hard fate of after re- 
lease, 373 

— maim or kill each other by 
agreement, to get reUef, 169 



Prisoners maintained by their 
friends, 20 

— often required to keep them- 
selves, II 

— of war sent across the Atlantic, 
no 

— proposed scientific examina 
tion of, 336 

— supposed to receive id. or 2d. a 
day, 20 

Prison, symbol for in cuneiform 

writing, I 
Prisons, absence of in the early 

times, 7, 10 

— of the Church ; various kinds 
of discipline in the, 41 

— should be hives of industry, 

376. 377 
Pro Clero, statute, 35 
Prohibition, stimulus of, 358 
Prostitutes sent to West Africa, 

124 
Protandrism referred to, 299 
Punishment found not to deter; 

evidence of prison officials, 239 

— jacket, the, referred to by 
Charles Reade, 191, 192 

— gradually supplants vengeance, 
255, 256 

— obeys the law of diminishmg 
return, 244 

— of quite mad people advocated, 

94, 95 

— only deterrent when close and 
visible, 238 

— really instructive, reasons for, 
put in later on, 249 

— unequal effects of, 232 
Purgation abandoned, 1576, 52 
Pythagoras' teaching on suicide, 

271 

R 

Rape, different forms of, 361 
Reading test abandoned, 1705, 53 

— the test of clerkship, 35 
Rebels deported, forbidden to re- 
turn to England, 1747, m 

— forbidden to reside in France 
or Spain, in 

Recidivism, head springs of, 342 

— prevalent with the severest 
possible prisons, 237 

Rehabilitation, inevitable diffi- 
culties in the way of, 381 

— the need of: on this subject 



406 



SUBJECT INDEX 



see also F. Reginald Statham 

in Fortnightly Review, Dec. 1907, 

374 
Remission of part of sentence, 

how allowed, 202 
Responsibility, a test of apparent, 

338 
Restitution according to rank, 4 
Retaliation, instinct of, 248 
Rewards as well as punishments 

should be given to prisoners, 377 
Richard, naval laws of King, 127 
Ridley, Sir M. W., Bill brought in 

by, 217 
" Ripper " murders, nature of the, 

363 
Robbery with violence not stopped 
by flogging, and still persistent 
to-day, 204 

outbreak of in 1862, 203 

Rock, prisoner chained to a, 160 
Rogers, Rev. T., protests against 
prison horrors at Norfolk Is- 
land, 165 
Ross, Dr. James, evidence of, 237 



Salvation Army : General Booth's 
sympathy towards prisoners, 
380 

Sanctuaries, colonies about the 
great minsters, 27 

Sanctuary, privilege of, 25 

— refugees protected upon the 
highway, 26 

— right of, taken away in 1623, 28 
Sarah Island at Port Macquarie, 

160 
Saxons came of age in their 

teens, 2 
Scantinian law, the Roman, 293 
Schopenhauer : folly has casting 

vote, 270 
Scot attacks the witchcraft con- 
ceptions, 66 
Seceders, the Scottish, deplore the 

repeal of the penal laws against 

witchcraft, 1743, 70 
Self-control should be taught in 

prisons, 375 
Selfishness the foundation of evil, 

333 
Sentence, difficulty of estimating 

what will be given, 243 
Sentences, inequality of, 241 



Sentences, long, types actually 
enduring, 230 

Separation, " the greatest aberra- 
tion of the nineteenth century," 

195 

— torture of described, by a Re- 
corder of Birmingham, 199 

Sex, latent bisexuaUty in each, 299 

— problems ultimately economic, 
361 

Sexes, similarity of the, 298 
Sexual offender different from 
ordinary criminals, 348, 349 

— offences, future treatment of, 
364 

Ship in salt water exonerated 

from " wilfully " causing death, 

254 
Sick prisoners treated in separate 

cells, 193 
" Significavit," writ of, 40 
S., J., the tragedy of, 351 
Slavery, increase of black, in 

America, 119, 120 

— penal, 5 

— prisoners of war and defaulters 
sold into, 5 

Slaves could be killed or injured 

with impunity, 6 
Smallpox, thought to be stayed 

by barricades across paths, 81 
Sodomy alleged in marrying jfews, 

44 
Soldiers frequently recruited from 

outlaws and criminals, 99 

— suggestion that prisoners of 
war should be sold as, 1 10 

Sole, acquired habit of swimming 
shown by the, and the pleuro- 
nectidae, 298 

Solitary confinement, difficulty of 
estimating the horrors of, 197 

— — employed by the Church, 43 
experiments in, 178, 186, 

187 

extends in the nineteenth 

century, 174 

lunatics consigned to, 185 

the most subtle of all tor- 
tures, 183 

the " philanthropists " will 

persist, j8i 

Solitude, depressing effects of, 228 

Solon, laws of, with regard to 
morals of slaves, 293 

Spee, Father, pleads for modera- 
tion, 67 



SUBJECT INDEX 



407 



Spina observes that it is blas- 
phemous to doubt witchcraft, 
69 

" Spirits," or child stealers, hatred 
of the, 1 1 5 

Spirits the standard medium of ex- 
change in the early AustraUan 
settlement, 134 

Sprenger and Institor, appointed 
inquisitors, 65 

Stabbing woman of Kensington, 
the, 363 

Stake driven through the bodies of 
suicides, 287 

Star Chamber, court of the, takes 
over special and moraUty pro- 
secutions, 52 

Stead, Mr. W. T., on the necessity 
for discussion, 291 

Stephen VI, Pope, tries the body 
of Pope Fonnosus, 262 

Stewart, Mr. R. P., orders Major 
Childs to be more severe, 166 

" Stretcher," the, a Norfolk Is- 
land instrument of torture, i68 

Suicide amongst the Jews, 275, 
278 

— change of views upon ; effect of 
Christianity on, 272 

— minute precautions against, in 
the modem prisons, 231 

— scandalous sentences for at- 
tempted, 290 

— the honourable end in ancient 
Scandinavia, 274-5 

— various views upon, 270, etc. 

— views concerning, in China and 
Japan, etc., 273 

Sun, virgins of the, penalty for 
seduction of, 251 



Taboo placed on reports of the 
sexual cases, 258 

— terror at breaking any, 247 
Talking, breach of rules against, a 

great source of punishment, 204 

— even on Sundays, stopped in 
1877, 212 

— to oneself considered evidence 
of being a witch, 73 

Testes SynodaUs, the, 3 1 
Theow, or slave, man-price of, 5 
Theows or slaves, how flogged, 6 
Things, punishment of, 249 



Toasts, anti-social, disappearance 
of some, 325 

Tobacco employed as currency in 
Virginia, 134 

Toledo, Council, of, punishes at- 
tempted suicide with two 
months' exclusion, a.d. 693, 283 

Tonsure, importance of the, 34 

Torts, ancient penal law was a law 
of, 3 

Torture, clergy forbidden to wit- 
ness, 36 

— revival of, after the abandon- 
ment of trial by ordeal, 24 

Transportation Act, a, 1 597, 107 

— advantages of, 137 

— colonial league against, started 
in 1830, 141 

— fear of the Government that 
it was not sufficiently dreaded, 
142 

— to America became a regular 
custom from the year 161 8, 108 

ends about 1779, 120 

resumed 1717, 109 

unequal results of, 120, iji 

— to Australia, 123 

how prisoners were selected 

for, 130 

— to New South Wales brought to 
an end, 143 

— to Virginia impeded, 1671, 109 

— Van Diemen's Land preferred 
to AustraUa, 143 

Transpprted convicts all sorts of 

people, 137 
at first, were really given 

" a chance," 129 
frequently rose to excellent 

positions, 139 
tens of thousands became 

good citizens, 147 
Treadmill, invention of the, 1818, 

188 

— labour upon the, 190 

— women compelled to work the, 
189 

— varieties of the, 189 
Treadmills used in the Penal Set- 
tlements, 160 

Treason punished by hanging, 

drawing and quartering, 263 
Treatment for aU prisoners, 335 

— must have a definite object, 
365 

Trees to be puUed in cases of 
perjury, 252 



408 



SUBJECT INDEX 



Troyes, Council of, refuses burial 

for all suicides, a.d. 878, 283 
refuses Christian burial to 

suicides, a.d. 878, 283 
"Twelve Tables," Laws of the, 3, 

255, 256 
Twins, alleged evidence of adultery 

in having, 258 



U 

Uglich, the exile of, 252 

UUathorne, Archbishop, compares 
prisoners with anchorets, 197 

description of the con- 
demned at Norfolk Island, 164, 

Utfangthef, right of, 9 



Van Diemen's Land, last convict 

ship sails to, 1852, 146 
severe discipline enforced in, 

143 
wretched state of things in, 

144 
Vendetta, ancient laws made to 

prevent, 2 

— different from punishment, 339, 
Vengeance becomes the task of the 

state, 9, 10 

— taken on any thing, which 
caused death, 253 

— taken on kinsfolk, 7 
Vermin, gaol fever spread by the, 

17 

— presence of, among school- 
children, 330 

Vestals, difficulty of securing the 

Roman, 349 
Vikings, boats of the, 102 
Virginia Company, the, created 

1606, 108 

— forbids the importation of con- 
victs, 1788, 120 

Visitors do not realise prison con- 
ditions, 224, 225 

— from outside always objected 
to, 227 

Voltaire denounces the seizure of 
the possessions of suicides, 288 



W 

Wages paid in rum, 1 34 

Wall, prisoners sometimes chained 
to a (see also Irons), 162 

Waste, King's right to lay, 251 

Weak-minded prisoners always in 
trouble, 214 

Wer, or man-price, the, 4 

Wesley, John, claims witchcraft 
as evidence for the super- 
natural, 70 

Western Australia, convicts des- 
patched to, 1 8 50-1 867, 146 

Wheel, breaking on the, a punish- 
ment for treason, 12 

Whips, American, 182 

— the different "cats," 150 

— kept in disorderly houses, 362 

— the knout, 1 50 

— the korbash, 150 

— the " membrum tauri," 20 

— the plet, 1 50 

— the sjambok, 1 50 

— used in Saxon times, 6 

— varieties of, 149 et seg. 

— with three and six lashes, 54 
Wier, Coxswain James, protests 

against the cruelties upon Nor- 
folk Island, 16s 
Wier, John, opposes witch per- 
secution, 66 
Wihtraed, a law of King, 323 
Witchcraft, beUef in, kept alive 
by theology, 68 

— delusions among the American 
Puritans, 68 

— laws against, lasted in England 
till 1736, 68 

— the vast number of persons put 
to death for, 74 

Witches, alleged fearlessness of, 
62, 63 

— classification of alleged, 71 

— minutely searched by other 
women, 59 

— supposed to have insensible 
spots upon their bodies, 63 

— to be prevented from sleeping, 
61 

Wife or additional fine, the, 8 
Wives were often allowed to 

follow their husbands out to 

Australia, 139 
" Wolf's heads," or outlaws, a 

fairly numerous class, 5 
Wycliffe, dug up and burned, 264 



SUBJECT INDEX 



409 



X 

Xerxes' rebuke to the Hellespont, 
250 



" Year Day and Waste," ancient 
right of the Crown to, 251 



York Asylum, state of, 87, 90, 91 
Young, constant neglect of the, 
343. 344 



Zoroastrians regarded suicide as a 
sin, 284 



Pfinted by HaiM, Watson &■ Vmey, Ld., London and Aylesbury. 



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